Mag Raj and Others vs Jawan Mal and Others

Dr. Vineet Kothari, J.

This Execution First Appeal is arising out of the Order dated 07.04.2011 passed by the learned Additional District Judge, Sumerpur, District Pali in Misc. Execution Case No. 5/2010 who rejected the application filed under Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure by the applicants-objectors against execution of the decree dated 07.10.2004 which was passed in Civil Original Suit No. 88/1990 Jawan Mal Vs. Chunni Lal by which decree in the suit for specific performance of the contract was decreed in terms of the compromise between the parties, in favour of the plaintiff-Jawan Mal (decree-holder).

The present Execution First Appeal has been filed by the appellants-objectors namely, Mag Raj S/o. Devaji Mali and Mitha Lal S/o. Devaji Mali, against rejection of their application (objections) by the learned Executing Court, as aforesaid. The appellants-objectors herein are, admittedly, the younger brothers of judgment-debtor Chunni Lal S/o. Devaji Mali, who was the defendant before the learned Trial Court and against whom, the decree for specific performance of the contract was passed.

The learned Executing Court below has rejected the objections of the appellants filed under Rule 21 Rule 97 read with Section 151 of the Code of Civil Procedure in the following manner:-

The learned counsel Mr. Girish Sankhla appearing on behalf of the appellants-objectors has relied upon a decision of the co-ordinate bench of this Court in the case of Lalita Vs. The District Judge and Ors. reported in 2006 (4) RDD 2033 (Raj.) and submitted that the objections filed by way of application by the present-appellants-objectors were required to be decided as fresh suit as per the provisions contained in Rule 101 to Order 21 of the Code of Civil Procedure but the learned Court below has failed to decide the said objections in accordance with provisions of Rule 101 of the Code of Civil Procedure and, therefore, the impugned order dated 07.04.2011 deserves to be quashed and set aside. The learned counsel has relied upon an agreement dated 24.03.1989 purportedly executed between the present judgment-debtor Chunni Lal and the two present objectors namely, Mag Raj and Mitha Lal on a stamp paper of Rs. 2/- only purportedly agreeing to sell the property in question in the year 1989 on 24.03.1989. The learned counsel further submitted that the said agreement dated 24.03.1989 was produced before the learned Executing Court along with the prescribed Form No. 3 but the learned Executing Court below has failed to take note of the same and has rejected the objections application by the present appellants-objectors under Order-21 Rule 97 CPC. The learned counsel also submitted that the objectors are in possession of the property in question for last 30 years and, therefore, they could not be dispossessed under a collusive decree obtained by the decree-holder Jawan Mal by entering into a compromise with their brother, judgment-debtor Chunni Lal.

On the other hand, the learned counsel Mr. Shreyansh Mardia on behalf of Mr. Sandeep Shah and the learned counsel Mr. Narendra Gehlot appearing for the decree-holder and judgment-debtor respectively submitted that the alleged agreement dated 24.03.1989 is not a valid document and they, therefore, submitted that since the present objectors were not in good terms with the judgment-debtor Chunni Lal, who were, admittedly, the younger brothers of the Chunni Lal, they had alleged that they are in possession of the disputed property and they could not be dispossessed from the property in question under a collusive decree obtained by the plaintiff-Jawan Mal by entering into a compromise with the defendant-Chunni Lal. The learned counsels further submitted that the objectors, in the present case, had served a notice upon the decree-holder Jawan Mal (plaintiff) on 12.02.1991 to which, the plaintiff-decree-holder Jawan Mal had submitted his reply on 13.03.1991.

The learned counsel for the respondent further submitted that in the above circumstances, the present objectors were fully aware right from 1991 about the present suit and decree passed by the competent Court below on the basis of the compromise in relation to the property in question. The learned counsels further submitted that the present appellants-objectors had not raised any dispute in relation to the decree passed in the year 2004 and had never filed any application for their impleadment in the pending suit nor they made any request to the Court concerned with regard to the said agreement dated 24.03.1989 and, therefore now the plea raised on the basis of the alleged agreement dated 24.03.1989 is sham and of no avail and more so, the alleged agreement was executed on a stamp paper of Rs. 2/- only and after so many years, the objectors have no right to raise any objection against the decree passed by the learned Trial Court in the year 2004 and which suit was decreed on the basis of compromise entered between the plaintiff-Jawan Mal (decree-holder) and the defendant-Chunni Lal (judgment-debtor). Thus, the objections raised by the present appellants are of no substance and have rightly been rejected by the learned Executing Court and, therefore, the present Execution First Appeal deserves to be dismissed by this Court.

Having heard the learned counsels for the parties and upon perusal of the impugned judgments and decree as also the records of the both Courts below, this Court is satisfied that the present Execution First Appeal filed by the appellants-objectors is devoid of any merit and deserves to be dismissed.

The agreement dated 24.03.1989 purportedly executed between the objectors and the judgment-debtor Chunni Lal on a stamp paper of Rs. 2/- only does not inspire any confidence and even if it is assumed for the sake of arguments that it was executed during contemporary period, nothing prevented the present objectors to have made application for their impleadment in the suit in relation to the property in question which was pending before the competent Court filed by the plaintiff-Jawan Mal against the defendant-Chunni Lal. This Court is of the opinion that the present appellants-objectors could very well agitate their rights only in the pending suit which was pending in the competent Court but having not done so, they cannot be permitted to raise any objection in the execution proceedings in relation to a decree passed by the Court below in the year 2004 now on the basis of alleged agreement dated 24.03.1989 purportedly executed by Chunni Lal in favour of the present objectors in which, the judgment-debtor Chunni Lal had agreed to transfer the property in question in favour of the objectors. This agreement remained a piece of paper through out this period with the present objectors and, therefore, this Court is of the opinion that the said document dated 24.03.1989 is a sham document and which cannot be believed.

In this view of the matter, this Court is also of the opinion that the objections filed by the present appellants were rightly rejected by the learned Executing Court, after critical examination of the record of the case and merely on the basis of the alleged agreement dated 24.03.1989 in which, the defendant-Chunni Lal purportedly agreed to transfer the property in relation in favour of the appellants, the decree dated 07.10.2004 cannot be validly objected against and, therefore, the present Execution First Appeal deserves to be dismissed.

Accordingly and in view of the discussion foregoing, the present execution first appeal filed by the objectors-Mag Raj and Mitha Lal is dismissed. A copy of this order be sent to the parties concerned and Executing Court of learned Additional District Judge, Sumerpur, District Pali forthwith.