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SMT.SUNITA JAIN versus SMT.PUSHPA DEVI JAIN & OTHERS

High Court of Judicature at Allahabad

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Smt.Sunita Jain v. Smt.Pushpa Devi Jain & Others - CIVIL REVISION No. 535 of 1999 [2006] RD-AH 15729 (8 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Revision No.535 of 1999

Smt. Sunita Jain Vs.   Pushpa Devi Jain and others

Connected with

First Appeal From Order No.(867) of 2006

Smt. Sunita Jain  Vs.     Smt. Pushpa Jain and others

With

First Appeal No.377 of 2006

Chunna Khan and others. Vs.  Smt. Pushpa Devi Jain and another.

Hon'ble Prakash Krishna, J.

The aforesaid three cases were heard together and are being disposed of by a common judgment as all of them arise out of execution proceedings and the objections filed by the applicants and the appellants herein, have been dismissed by the Executing  Court.  The arguments were advanced with reference to the FAFO No.(867) of 2006 by the learned counsel for the appellant.

The facts giving rise to the present cases in brief are as follows:-

Smt. Pushpa Devi, the decree-holder, instituted a S.C.C. Suit No.21 of 1991 against Roop Chand and another for the recovery of possession in respect of house No.20/18, Sirki Mandi, Sheo Nagar, Loha mandi, Agra and also for recovery of  arrears of rent and damages.  It was pleaded that the plaintiff namely Smt. Pushpa Jain by means of a registered sale deed dated 6th of July, 1987 purchased the property in question from one Sheo Charan lal Vaidya.  Shri Roop  Chand, the defendant in the suit was tenant on a monthly rent of Rs.70/- and he defaulted in paying the rent since 1st of October, 1981 to the erstwhile owner and landlord.  The plaintiff after terminating the tenancy of  Roop Chand instituted the aforesaid suit.  The defendant in spite of service of notice by publication failed to appear and contest the suit.  The plaintiff proved the service of notice as also the sale deed dated 6th of July, 1985 and the agreement paper No.23 and the rent note etc.  The suit was decreed by the judgment and decree dated 10th of March, 1995 for ejectment of defendant and for recovery of Rs.3,130/- towards the arrears of rent and damages at the rate of Rs.70/- per month.

The decree was put in execution.  Smt. Sunita Jain resisted execution of the decree on the ground that she has purchased the property in question from Sheo Charan lal Vaidya.  It was registered as Misc. Case No.35 of 1998.  The Executing Court by the order dated 19th of November, 1999 dismissed the said objections as Smt. Sunita Jain in spite of opportunities granted to her failed to appear and support her objections.  Against the aforesaid order revision No.535 of 1999 was filed which has not yet been admitted.  It appears that when writ for possession was issued by the Executing Court, the court Amin submitted a report that delivery of possession has been resisted by Smt. Sunita Jain.  The Amin also reported that out of the four boundaries described in the plaint of aforesaid suit No.21 of 1991, the southern boundary, on account of  constructions which have come into existence with the passage of time does not tally with the boundaries mentioned in the plaint.  The decree holder filed an application for amendment in the execution application, on 24th of December, 1999.  The said application was allowed by the Executing Court and the necessary amendment was carried on.  Thereafter the decree was again put into execution.  Kali Charan (Amin), Civil Court, Agra, visited the spot on 13th of March, 2006 after due notice to affect the delivery of possession to the decree holder.  At the time of delivery of  possession Rahul Jain son of Mahaveer Jain resisted the execution of warrant of possession on the allegation that the property in question belongs to Smt. Sunita Jain and was used by Roop Chand  for doing the business.  On the resistence being offered and due to mob collected on the spot, the Amin returned the warrant of possession unexecuted  and reported that necessary police force be provided and the permission to deliver the possession by breaking the locks may be granted,  through his report dated 13th of March, 2006.

The present applicant namely Smt. Sunita Jain wife of late Shri Mahaveer Prasad Jain filed an application under Order 21 Rule  97 of C.P.C. on the allegations that she is owner in possession of the property bearing Municipal No.20/18, situated at Sirki Mandi, Shiv Nagar, Lohamndi, Agra. The said property consists of  four shops measuring 40ft. x 30 ft. each in ground floor portion in Northern side and double storey building in Southern side.

On 1st of May, 2006, the present applicant Smt. Sunita Jain filed objections under Order 21 Rule 97 of C.P.C.  It was registered as Misc. Case No.31 of 2006.  Along with the said objection an application to stay the execution proceedings was also filed.  The Executing Court  ordered the registration of the objections but it refused to grant stay ex-parte.  Against this very order a civil revision No.214 of 2006 was filed in this Court.  This Court on 23rd of May, 2006 granted a conditional stay order staying the execution of the decree till 15th of July, 2006 provided the applicant deposits Rs.30,000/- before the Executing Court to show her bonafide within one week.  The said order is reproduced below:-

"Issue notice pending admission.

The present revision arises out of execution proceeding.  Learned Counsel for the applicant submits that the decree holder obtained collusive decree against the judgment debtor treating him as a tenant.  From the order dated feeling aggrieved.5.2006 it appears that earlier tenant obtained stay order staying execution of the decree.  The said order was vacated subsequently.  The Court has further observed that a writ for delivery of possession was issued.  This time Smt. Sunita Jain appeared.  It is further stated that Smt. Sunita Jain has no concern either with the judgment debtor or with the decree holder. She is claiming independent right over the property in dispute.  The decree shall not be executed till 15.7.2006 provided the applicant deposits Rs.30,000/- before the executing Court to show her bonafide within one week from today.  In case of default the stay order shall stand vacated.

List for admission on 17.7.2006."

When the matter was taken up on 17th of July, 2006, Shri H.M. Srivastava, the learned counsel for the applicant submitted  that the revision may be dismissed as withdrawn as the applicant  could not comply with the conditions of the order dated 23rd of May, 2006.  The revisions was dismissed accordingly.

It has been stated in the objection that she has purchased land out of property No.20/80 from its erstwhile owner Raj Narain Sharma vide registered sale deed dated 7th of  February, 1991 and she was put in proprietary possession over the property by her vendor.  She has further stated that she has made substantial constructions thereon and the decree holder is not the owner of the property in question.  The S.C.C. Suit filed by the decree holder against the opp.party No.1 was a collusive and untenable in law.  The said objections were dismissed by the court below by the order dated 28th of July, 2006 as the objector failed to prove his objection in spite of repeated call.  The court below has further found that on earlier occasion the objections filed by the objector were also dismissed and by concealing the said fact the present objections were filed.  Against this very order a first appeal No.363 of 2006 was filed which was dismissed as withdrawn on 21.8.2006 by the following order:-

"After hearing Sri P.N. Saxena, Senior Counsel at some length, learned Senior Counsel submitted that he may be permitted to withdraw the appeal as not pressed. It may be stated here that the present appeal arises out of execution proceedings and the present appellant had already filed civil revision No.214 of 2006 in this Court. In the said revision conditional stay order  was granted to the appellant who was applicant in the revision, failed to comply with the aforesaid conditions.  Sri Saxena  submitted that a copy of the stay order dated 23.5.2006 was not produced before the executing court and no benefit was availed of ex-parte stay order dated 23.5.2006.  However in all fairness filing of earlier revision and passing of conditional stay order should have been disclosed in the present appeal by the appellant.  The appeal is dismissed as withdrawn as submitted by Learned Senior Counsel for the appellant with the condition that all these facts should be disclosed whenever the revision or appeal is filed in this Court."

An application to recall the order dated 28th of July, 2006 was filed on the ground that the said order was passed in the absence of the objector.  The said application has been rejected by the Executing Court by the order  dated 2nd of August, 2006 as it was opposed by the decree holder on the ground that she was present throughout the day and she denied the allegation that the objector could not appear when the case was called.  The decree holder objected the recall of the order dated 28th of February, 2006 on the ground that the objector intentionally absented herself on the aforesaid date. The executing court rejected the said recall application on the ground that the execution is pending since 1996.  On earlier occasions such as 11.5.2006, 7.7.2006 and 21st of July, 2006 the objector was absent but opportunity was afforded by it to the objector so that she may come and press the objection.  The objector intentionally failed to appear on 28th of July, 2006.  It conluded that the objector is intentionally delaying the execution proceedings.  It was also found that the objector Smt. Sunita Jain never appeared in the court and the case is being looked after by Shekhar Jain who is the son of the decree holder namely Roop Chand Jain.   The decree was passed against Roop Chand Jain in the year 1995 and the execution proceedings are pending since 1996 and a period of 10 years has already lapsed.  It has been noted that the objections filed by Roop Chand  Jain have already been dismissed and Shekhar Jain being son of Shri Roop Chand Jain  is one of the family member and the execution proceedings is being delayed under the garb of Smt. Sunita Jain.  The further finding is that the objections have been filed just to linger on the execution proceedings and for indirect gain to the judgment debtor.  Feeling aggrieved against the said order, F.A.F.O. No.(867) of  2006 under Order 23 Rule ( c ) of  C.P.C. has been filed.

Heard Shri H.M. Srivastava, Advocate, who was the counsel in the already decided cases referred to above and is also a counsel for Chunna Khan, another objector and appellant in first appeal No.377of  2006.

At the very outset it may be placed on record that the learned counsel for the appellant did not dispute the fact that on earlier occasions objections filed by the present objector Smt. Sunita Jain  have been rejected.  It has also not in dispute that Smt. Sunita Jain is the daughter-in-law of the judgment debtor Shri Roop Chand  Jain.  It is also come on the record that the objections filed by the judgment debtor Shri Roop Chand  Jain has already been rejected.  In view of the fact that the objections filed by Shri Roop Chand Jain has already been rejected and on earlier occasions, objection filed by the present objector has also been rejected.  The filing of successive objections by the present objector is nothing but an abuse of  process of  law.  From the facts as disclosed above, it is clear that for the reasons best known to the objector, she in spite of repeated opportunities granted by the Executing Court is not interested to get adjudication of her objections,  on merits.

The decree holder purchased the disputed property by means of a registered sale deed dated 6th of July, 1985 from Shiv Charan lal Vaidya.  The objector is claiming that she has purchased the property from one Raj Narain Sharma on 7th of  February, 1991.  Copy of the said sale deed has been filed as Annexure -5 in F.A.F.O. No. (867) of 2006.  The covered area of the sale deed is only 9 Sq. meters and the vacant area is 200 Sq. meters and the said property has no municipal number and no municipal tax is being paid thereon and it was sold for a sum of  Rs. 20,000/- in pursuance of the registered agreement dated 13.7.1990.  The description of the boundaries of the property sold in the sale deed is as follows:-

East : Jaydad of  Smt. Mayadevi Jain.

West: Nikas Jaydad Hava Wadhoo Rasta Aam.

         North:  Gali Wadhoo Jaydad Shri Hubbalal.

South:  Jaydad Digar, Minmukir.

From the perusal of the above sale deed it is crystal clear that in year 1991, the constructed area was only 9 Sq. Meters.  But according to the objector  presently constructions on the spot are in the shape of  four shops on the ground floor and residential accommodation.  It was for the objector to prove her case that she acquired the disputed property from its true owner by producing the relevant evidence.  She having failed to do so is not entitled to the grant of any relief from this court.  The rent note executed by the objector's father-in-law Shri Roop Chand  Jain is on the record of the case.  

Taking into consideration the total facts and circumstances of the case,  the court below committed no error either of law or fact in rejecting the objections filed under Order 21 Rule 97  C.P.C. when the objector failed to appear and prove the objections by producing the evidence.  It is true that when resistance to the execution decree is offered by third party, the Executing Court can look into the title of the third party.  Strong reliance was placed upon a judgment of the Apex Court in the case of  Silver Line Form Pvt. Ltd.  Vs. Rajiv Trust and another A.I.R. 1998 S.C. 1754.  It has been held as follows:-

"The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely because the resistor raised it. The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21, Rule 97(2) of the Code, execution Court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section".

In the passage quoted above, the Supreme Court has observed that the objections raised by the third party must give rise to such questions which legally arise between the parties and determination of such questions must be relevant for consideration.  This is the crux of the aforesaid judgment.  Reverting to the facts of the case, it is clear  that the objector has filed the objections for the sake of objections and she is indisputably family member of the judgment debtor.  The facts as disclosed above clearly demonstrate that the objections raised by the objector is frivolous and untenable in law.  The following observation of the Apex Court made in the case of  Ravinder Kaur Vs. Ashok Kumar & another 2004 S.C. 704 (22)  followed in Gayatri Devi Vs. Shashi Pal Singh 2005 AIR SCW 2070 in connection with the execution of the decree is to be noted:-

"Courts of law should be careful enough to see through such diabolical plans of the judgment - debtors to deny the decree holders the  fruits of the decree obtained by them.  These type of errors on the part of the judicial  forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."

In view of above, there is no merit in the argument of the learned counsel for the objector.

No separate arguments were advanced in Civil Revision No.535 of 1999.  

Apart from the above the maintainability of the first appeal from order  under Order 43 Rule feeling aggrieved ( c ) of C.P.C. is also doubtful.  Prima facie such an appeal is not maintainable.  Be that as it may, the appeal lacks merit.  

In view of the above discussion, both the civil revisions No.535 of 1999 and FAFO No. (867) of 2006 are hereby dismissed summarily.

First Appeal No.377 of 2006 (Chunna Khan  and another Vs. Smt. Pushpa Jain and others).

Now I take up the above appeal.  The Executing Court by the order dated 28th of July, 2006 passed in Misc. Case No.32 of 2006 has rejected the objections filed by the present appellants under Order 21 Rule 97 filed against the execution of the aforesaid decree.  The objections were filed on the pleas inter alia that originally Shri Raj Narain Sharma was the owner of the property in question who executed a Will dated 15th of June, 1987 in favour of the objector and therefore the objectors are owners in possession of the disputed property. The court below by the order under appeal dismissed the said objections on the finding that the objector has failed to produce any evidence to show that he is the real owner of the disputed property or he is in possession thereof.  It has been found that the possession of the objectors is unauthorised one and the objectors are trespassers.  The said findings recorded by the court below in absence of any evidence to the contrary are perfectly justified.  Shri H.M. Srivastava, the learned counsel for the objectors could not show any thing to take a different view of the matter.  It may be noted that Shri H.M. Srivastava, Advocate, is the counsel for Chunna Khan as well as for Smt. Sunita Jain, the other objectors.  Both are claiming disputed property from Raj Narain, one through a sale deed and the another through a Will.  They are claiming title to the disputed property on contradictory and incompetent pleas and their interest is detrimental to each other.  There is no merit in the appeal filed by Shri Chunna Khan and another.  The first appeal No.377 of 2006 lacks merit and is therefore dismissed.

In the result all the three cases are hereby dismissed.

Dt.8.9.2006

LBY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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