Mahesh Electronics vs Ramkumar Dead by LRs And Others

Sharad Kumar Sharma, J

The petitioner admittedly happens to be a purchaser from the judgment debtor having purchased the property by virtue of the sale deeds dated 24.07.2001 and 01.09.2001. Under the strength of the sale deeds claiming that they happen to be in possession of the property in question, they had filed an application invoking Order 21 Rule 99 of the Code of Civil Procedure.

In order to elucidate the impact of Order 21 Rule 99 a reference of the same is necessarily required to be made at this stage itself. It reads as under:

"99. Dispossession by decree holder or purchaser

(1) Where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.

(2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

Order 21 Rule 99 in its strict literal sense and in view of the language, which has been used therein, it only comes into play when in pursuance to a decree which has been executed in favour of a decree holder the factum of dispossession of the person occupying the property in question is a condition precedent and the same has taken place, then only a right to move an application under Order 21 Rule 99 accrues or come into existence.

In the case at hand it is consistently an admitted case of the petitioners, who are the applicants to Order 21 Rule 99, that they in fact have claimed as are owner in possession of the property in pursuance to the sale deeds referred above, which has been executed during the pendency of the second appeal, so it was a transfer pendente lite and, hence, the implications under Section 52 of the Transfer of Property Act would automatically follow. If we read the purpose and legislative intent of Order 21 Rule 99, the maintainability of an application under Order 21 Rule 99, the pre condition, which has been envisaged by the statute, is a factum of dispossession of the judgment debtor or any other person, who is in possession of the disputed property which is sought to be handed over in pursuance to the execution of decree to the decree holder. Hence, it cannot also be ruled out that the application under Order 21 Rule 99 could only be maintainable by a person, who had been dispossessed in execution of a decree, that means at the behest of the petitioner the application was not tenable as the pre condition of dispossession has not taken place.

The case of the petitioner would also suffer from yet another legal vices on account of the case itself, which has been built up by the petitioner for the purposes of invoking Order 21 Rule 99 in fact the rights, which would otherwise be falling from it, would be barred by the provisions contained under Order 21 Rule 102 of the Code of Civil Procedure, which reads as under:

"102. Rules not applicable to transferee pendente lite- Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person."

Admittedly, the petitioner is a purchaser from the judgment debtor pending consideration of the second appeal, and Rule 102 thus creates a bar that a transferee pendente lite cannot resist or obstruct the execution of a decree for possession of an immovable property under the pretext of being a purchaser from the judgment debtor during the pendency of the proceedings before the Court below. Hence, also in view of the provisions of Order 21 Rule 102 to be read along with Order 21 Rule 99, it would render the inception of the application at the behest of the petitioner to be untenable to object process of execution of a decree, which otherwise has attained finality upto the stage of execution preferred by the respondent decree holders by way of Execution Case No. 10 of 2010.

The learned counsel for the respondent in support of the said contention pertaining to the tenability of an application under Order 21 Rule 99, has made reference to a judgment reported in 1998(3) SCC 723 'Silverline Forum Private Ltd. vs. Rajiv Trust and Another' and, in particular, the reference, which has been made by the respondent is to the contents of paragraph 10 of the said judgment, which is quoted hereunder, which too has laid down the same ratio as already dealt above as to the extent upto and in what manner the transferee pendente lite from the judgment debtor has to be dealt with at the stage when the execution has ultimately culminated and a right is being sought to be reinforced by invoking the provisions of Order 21 Rule 99, which otherwise under the given circumstances was not available to the petitioner in view of the bar created by Rule 102 of Order 21:

"10. 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 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.'

Brief facts of the case as it involves in the instant case are, that the predecessors of the respondent had instituted a suit being Suit No. 12 of 1972 'Lala Hukum Chand & Others vs. Sardar Dalip Singh'. In the suit in question the property in dispute, which was involved, which has been described therein, constitutes to be of Khasra No. 2772, bearing bandobasti No. of 1325 fasli Muntakhib Khewat No. 71, having an area of 5 biswas of land lying in village Ahmedpur Kadach, which now falls in Tehsil Roorkee, District Haridwar. In the suit in question the plaintiff had sought a decree in the nature of mandatory injunction as against the respondent for getting over the possession of the property as described at the foot of the plaint. A detailed scrutiny of the rights inter se between the parties to the suit at this stage is not required to be dealt into for the reason that the decree, which was rendered by the Civil Court on 15.12.1980 in the following nature, has attained its finality by the judgment of this Court rendered in Second Appeal No. 3206 of 1983 (Old Number):

"श्रीमानजी डिक्रीदार को मदयून से या जो भी व्यक्ति मौके पर काबिज पाया जाये उससे प्रश्नगत सम्पत्ति का कब्जा वास्तविक द्वारा अमीन अदालत डिक्रीदार को दिलाया जाये। दौरान इजराय वाद विपक्षी सं0 1 का देहान्त हो गया है और 1/1 व 1/3 उसके पुत्रगण जहां और प्रश्नगत सम्पत्ति पर 1/1 व 1/3 मौके पर काबिज हो जिस कारण डिक्री पर उनके विरूद्ध अनुतोष प्राप्त करने के अधिकारी है।"

On its transfer the second appeal was renumbered as Second Appeal No. 1486 of 2001 'Lala Hukum Chand & Others vs. Sardar Dalip Singh & Others'. Relevant portion of the judgment is quoted hereunder:

"12. Therefore, the second appeal deserves to be allowed. The second appeal is allowed. The suit is decreed, as prayed by the plaintiffs for dispossession of the defendant and injunction. However, in the interest of justice defendant Daleep Singh is allowed to remove his possession within a period of two months, failing which the plaintiffs will be at liberty to get the decree executed through the Court. No order as to costs."

This Court vide its judgment dated 17.07.2007 as quoted above had allowed the second appeal and had reversed the First Appellate Court's judgment dated 06.10.1983, as rendered in First Appeal No. 6 of 1981, and thereby the Second Appellate Court has maintained the judgment and decree as rendered by the Trial Court on 15. 12.1980, as referred above.

The civil proceedings, which has reached upto the stage of the judgment rendered by this Court in the second appeal on

07.2005 is admittedly had attained finality, as it has not been questioned by any of the parties aggrieved by the judgment before any superior Court, and as such the resultant effect of the judgment and decree dated 17.07.2007 would be that it has crystallized the rights of the parties to the proceedings, and as a consequence thereto, the execution of the decree dated 17.07.2007 and 15.12.1980, the decree holder was entitled to reap the fruits of the decree.

Though despite of being the judgment debtor and having lost his interest in the proceedings for the reason that during the pendency of the second appeal in relation to the same subject matter of the suit of 1972 in question, i.e. the property has been already detailed above and in fact was never ever disputed even, that was made a subject matter of transfer by the two sale deeds in favour of the present petitioners being sale deeds dated 24.07.2001 and 1.09.2001 executed by judgment debtor contrary to provisions of Order 21 Rule 102 and against its spirit, who claim their right and the basis of the initiation of the proceedings under Order 21 Rule 99, but before dealing with their stand, it also becomes essential for this Court to consider the fact that the decree holder in the Second Appeal on 17.07.2007, was put to execution by the decree holder (respondent herein) by filing an execution being Execution No. 10 of 2010 'Ramkumar vs. Sardar Dalip Singh'. It was objected by the present petitioners, who obviously claiming to be the purchaser pendente lite claimed to have stepped into the shoes of the decree holder in relation to the subject matter of the suit itself and the judgment debtor though having sold the property during the pendency of Second Appeal itself, yet had preferred the objection under Section 147 of the Code of Civil Procedure by filing the same, but the objection of the petitioner was dismissed on 28.01.2013, and thereafter the Court had issued a requisition for possession on 30.01.2013.

The objection thus preferred by the judgment debtor was considered by the executing court and the same was dismissed on 28.01.2013, and as against the dismissal of the objection under Section 47 of Code of Civil Procedure, a revision was preferred by the judgment debtor being Revision No. 11 of 2013 'Sardar Dalip Singh vs. Ramkumar Gupta', which too has met with the same destiny and was dismissed on 25.03.2013, and consequent thereto, as per the Amins report dated 07.04.2015 and also report of Tehsildar dated 7.04.2015 the decree holder respondent was entitled to be placed in possession over the property, which was the subject matter of the suit, of which the decree has been rendered in his favour. It is at this stage that the present petitioners, who claim their rights, based on the sale deed of 2001 for the first time as woken up from this slumber only after last 15 years of their alleged purchase by filing an objection under Order 21 Rule 99, the propriety of which has already been dealt with in the above part of the judgment.

In the objection, which they are filed under Order 21 Rule 99, apart from the fact that it suffers from the legal vices of its tenability, even otherwise also under the legal preposition if application under Order 21 Rule 99 has been filed, status of its judicial proceedings happens to be that of regular suit and its propriety has to be decided in the same fashion as if it is being undertaken to adjudicate upon the rights who are parties to the proceedings, whose rights have been decided in regular proceedings earlier and the said decree is being given effect too under Order 21 Rule 99 of the Code of Civil Procedure, but surprisingly, if we go through the application preferred under Order 21 Rule 99 even for a moment, if it is presumed even hypothetically that it was tenable at the behest of the petitioner, who had never been party in any proceedings, still the application itself was absolutely silent with regards to the subject matter, i.e. the property in relation to which it relates to, though it makes a reference to the judgment and decrees of the proceedings already dealt with above, which has culminated upto execution stage. But the application of petitioner cleverly avoided to give any details of the property in their application under Order 21 Rule 99. In the absence of its description it looses its very status to be a proceeding which could be decided as a suit, which is actually intended under law.

There is another remarkable feature, which has to be pointed out and taken into consideration at this stage, it is that the petitioner during the course of argument has raised a plea pertaining to the implications, which would be falling from the khatoni pertaining to 1325 fasli, which was obviously the khatoni, which ought to have been taken as a defence if at all tenable by the judgment debtor in the second appellate stage or atleast before the execution proceeding, he having not done so, then at least and the petitioner cannot now do so since has derived his rights as being the purchaser from the judgment debtor and atleast it was possible for the petitioner to have raised a plea if at all tenable even at the stage of filing of an application under Order 21 Rule 99, if at all any right could have been determined based on the purported entries made in 1325 fasli, on scrutiny of the application under Order 21 Rule 99, it could be very well seen that till the culmination of the proceedings or a decision on the application under Order 21 Rule 99 the petitioners have never raised any plea pertaining to the interpretations sought to be made now at this stage to the entries of 1326 fasli by the judgment debtor or the entry pertaining to 1325 fasli by the decree holder.

Ultimately the Court of Civil Judge (J.D.) while considering the Miscellaneous Application No. 16 of 2015 preferred by the petitioners it was rejected by the impugned judgment and order dated 30.01.2018 under challenge at the behest of the petitioners in Miscellaneous Civil Appeal No. 28 of 2018 'Mahesh Electricals vs. Ram Kumar & Others', which too has met with the same destiny and the Appeal was also dismissed by the judgment dated 30.05.2018. It would be pertinent to point out at this stage that the plea pertaining to the interpretation of the implications falling from the entries of 1325 fasli it was for the first time raised that too without only plausible basis by the petitioners at an appellate stage where he had questioned the order of rejection of his application under Order 21 Rule 99.

This Court being conscious that so far as the decree rendered in Suit No. 12 of 1972, which has attained finality upto the execution stage after the decision of Second Appeal on 17.07.2007, the same could not have been disturbed at the behest of the petitioners now by endeavouring to make an effort for a re-trial of a right, which otherwise stood determined and crystalized by the decision of the executing court and its ultimate culmination by the Appellate Court's order, whereby, the petitioner's objection under Order 21 Rule 99 was also rejected on 30.05.2018.

Before this Court while challenging the order pertaining to the provisions contained under Order 21 Rule 99 the petitioners have sought to attempt upon to contend that under the garb of the decree finalized in favour of the decree holder upto the Second Appellate Court's judgment dated 17.07.2007, they cannot be permitted to barge upon the property even, which they contend to constitute to be the part of the sale deed, which admittedly has been executed in their favour in 2001 by the judgment debtor of Suit No. 12 of 1972 and, hence, at an appellate stage while questioning the order passed under Order 21 Rule 99 the petitioner cannot be permitted to take liberty to carve out altogether a fresh case, which otherwise though was available to him at the time of filing of an application under Order 21 Rule 99, but was never pleaded nor established for last 15 years from the date of alleged purchase before the court concerned, and atleast the petitioner cannot be permitted to take the stand that under the garb of the decree the decree holders are trying to encroach upon the part of the property, which otherwise did not constitute to be the part of the decree, cannot be accepted because such a plea if at all was available to the judgment debtor when he had filed his objection under Section 47 and which was taken into consideration when the objection was rejected and the decree was affirmed by the executing court.

The dispute pertaining to the identifiability of the property at the behest of the petitioner yet again cannot be agitated at the stage of pressing of the application under Order 21 Rule 99 or in an Appeal arising after its rejection, more particularly, when it was nowhere the case in the pleading raised by the petitioner or his predecessor seller case from whom he has claimed to have derived his rights by the sale deeds of 2001 and that too by raising a plea after 15 years of accrual of purported right to him on the basis of the sale deed referred therein executed by the judgment debtor.

Since the decree rendered on 15.12.1980 in Suit No. 18 of 1972 'Lala Hukum Chand & Others vs. Dalip Singh & Others' has attained its finality upto the execution stage till the rejection of the revision by the judgment debtor under Section 47, this Court is of the view that the nature of objection, which the petitioner has sought to carve out by filing an application under Order 21 Rule 99, cannot be permitted to be taken at this stage, particularly, when in accordance with the language contained in the provisions of Order 41 Rule 99 was not available to the petitioner.

Consequently, this Court does not find any merit in the writ petition. Hence, the writ petition is dismissed.