Gurlal Singh vs Shaheen Parveen and Others

S. Chandrashekhar, J.—Aggrieved by order dated 22.05.2012 in Misc. Case No. 11 of 2011 whereby the said case has been "admitted", the present writ petition has been filed.

The brief facts of the case are that, the petitioner namely, Gurlal Singh filed Title Suit No. 93 of 2002 seeking mandatory injunction against the defendants. The claim of the petitioner/plaintiff is based on a sale deed executed in the year, 23.01.1991 and the cause of action arose when the defendants tried to demolish the boundary wall of the petitioner. The suit was decreed on 26.04.2003. The petitioner filed Execution Case No. 05 of 2004 in which an affidavit dated 21.09.2011 was filed by the petitioner-plaintiff confining his claim in respect to the suit schedule property to the extent of 6.17 kathas out of the total area of 14 kathas in Plot No. 585. An application dated 25.08.2011 was filed by the respondent No. 1-objector on the basis of the sale deed dated 30.09.2002 executed by the defendant No. 3 and the sale deed dated 25.05.2004 executed by the plaintiff. The said application has been "admitted" for hearing vide order dated 22.05.2012. Aggrieved, the petitioner has approached this Court by filing the present writ petition.

Heard the learned counsel for the parties.

Mr. Vikash Kishore Prasad, the learned counsel for the petitioner submits that, from the facts disclosed by the objector in his application dated 25.08.2011 it is apparent that the objector is claiming through the performa defendant No. 3 in so far as, the land comprised in sale deed dated 30.09.2002 is concerned. It further appears that the objector has also laid a claim with respect to 7.03 kathas land in the suit schedule property on the basis of the sale deed executed by the petitioner on 25.05.2004. In the Execution Case the petitioner-plaintiff filed an application dated 21.09.2011 restricting his claim to 6.17 kathas in the suit schedule property and it has been admitted by the petitioner that out of 14 kathas of land in suit schedule property, 7.03 kathas has been sold to one Shaheen Parveen, who is the objector in the present case. It is thus submitted that, the said objector is claiming through the performa defendant No. 3 who is the judgment-debtor and the sale deed executed by the performa defendant No. 3 is dated 30.09.2002, which was executed during the pendency of Title Suit No. 93 of 2002. Relying on a decision in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , the learned counsel for the petitioner submits that, the application dated 25.08.2011 filed by the objector was liable to be dismissed at the threshold however, the same has been "admitted", erroneously and therefore, interference of this Court is warranted.

Per contra, Mr. V. Shivnath, the learned Senior counsel appearing for the respondent No. 3 raises an objection to the maintainability of the Execution Case itself and submits that, if the petitioner concedes that he has no claim over 7.03 kathas of the land out of the suit schedule property, the plaintiff is required to seek amendment in the decree, first and then file a fresh Execution Case, which admittedly has not been done in the present case. Referring to application dated 21.09.2011, the learned Senior counsel submits that, the boundaries given in the said application are entirely different from the suit schedule property. It is submitted that, the objectors have lawfully purchased the land comprised in sale deed dated 30.09.2002 and thus, they have a substantial right in the property and therefore, the trial court has rightly "admitted" the case for hearing. The learned Senior counsel has relied on the decision in Sameer Singh Vs. Abdul Rab, to contend that the Court has the authority to adjudicate all the questions arising between the parties pertaining to right, title and interest in the property.

I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record.

From the facts disclosed in the present proceeding it is evident that the objector has laid a claim on a part of the suit schedule property on the basis of sale deed dated 30.09.2002 executed by the performa defendant No. 3 and sale deed dated 25.05.2004 executed by the plaintiff. The plaintiff in his application dated 21.09.2011 has sought execution of the decree only with respect to 6.17 kathas of land out of 14 kathas of the suit schedule property. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, , the Hon''ble Supreme Court has held as under;

"It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102, Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act." 8. The learned Senior counsel for the respondent No. 3 has relied on the decision in "Sameer Singh And Another Vs. Abdul Rab And Others" case in which the Hon''ble Supreme Court has held as under:

"The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a Court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree. If an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. In the instant case the executing court has expressed an opinion that it has become functus officio and hence, it cannot initiate or launch any enquiry. The appellants had invoked the jurisdiction of the High Court under Article 227 of the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. The appellants had approached the High Court as per the dictum laid down by this Court in Surya Dev Rai Vs. Ram Chander Rai and Others, . 9. In the impugned order dated 22.05.2012 the learned trial judge has recorded that on perusal of the case record and after considering the submission of the parties, Misc. Case No. 11 of 2011 is "admitted" for hearing. The facts disclosed in the application dated 25.08.2011 filed by the objector and the application dated 21.09.2011 filed by the plaintiff in Execution Case No. 05 of 2004 appears to have not been considered by the trial judge. It is well settled that in every case the application under Order XXI Rule 97 r/w. 101 C.P.C. is not required to be tried as a regular suit and therefore, it is not necessary for the trial judge to take evidence of the parties before deciding the objection of the objector under Order XXI Rule 97 r/w. 101 C.P.C. Though it is not required for the trial judge to give elaborate reasoning for "admitting" a case for hearing however, in a matter under Order XXI Rule 97 r/w. 101 C.P.C. where the court has power to dismiss the application in limine, before "admitting" the case for hearing the court is required to give reasons. No doubt the court can go into all questions between the parties however, the trial court is required to come to a prima facie satisfaction that the objection raised is substantial and the question involved in the case would substantially affect the right of the objector.

Considering the above facts, I am of the opinion that the impugned order dated 22.05.2012 is liable to interfered with and accordingly, it is set-aside. The matter is remitted back for a consideration afresh by the trial judge. Let the parties appear before the trial court within four weeks. It is expected that the trial judge would pass a reasoned order "admitting" or "not admitting" the application dated 25.08.2011.

Accordingly, this writ petition is allowed.

I.A. No. 845 of 2015 also stands disposed of.