Mohammad Ahmad vs Ahmad Hasan and Another

Rajes Kumar, J.—The present writ petition is being filed against the order of the Additional District Judge, Court No. 9, Muzaffarnagar, dated 14.10.2009, passed in Revision No. 39 of 2008 against the order of the Civil Judge (Jr. Divn.), Muzaffarnagar, dated 8.2.2008 in Suit No. 18 of 2007, Mohammad Hameed and Anr. v. Ahmad Hasan.

It appears that in respect of plot No. 1010M area 10.7.0 bigha, i.e., 2.072 hectare, situate in village Kambhedda, respondent No. 2 executed an agreement to sale in favour of respondent No. 1 in respect of his 1 /6th share in the property on 19.7.1991. It appears that respondent No. 2 has executed a sale deed of his l/6th share in the same property in favour of the petitioner on 31.7.1992. Respondent No. 1 filed Suit No. 625 of 1992 for specific performance. The said suit was decreed by the Additional Civil Judge, Muzaffarnagar, vide order dated 7.4.2003 and respondent No. 2 was directed to execute the sale deed within two months on payment of Rs. 4,000 and in case if respondent No. 2 fails to execute the sale deed, plaintiff-respondent No. 1 would be entitled to get it executed through the Court. It appears that in the suit the petitioner has been impleaded as defendant No. 2. It also appears that in the additional written statement it has been stated that the petitioner has executed a sale deed of the portion of the land in favour of one Mahipal on 21.12.1998. The trial court, having regard to this fact, has categorically observed that sale deed dated 21.12.1998, executed by the petitioner-defendant No. 2, stand nullified. It appears that in pursuance of the aforesaid decree dated 7.4.2003 the sale deed dated 2.8.2007 has been executed in favour of respondent No. 1 in respect of the property in dispute. On the execution of the sale deed, for possession, respondent No. 1 has filed an execution proceeding, which is registered as Execution Case No. 13 of 2003 in the said proceeding the petitioner has filed objection u/s 47 of the Code of Civil Procedure. The Additional Civil Judge (Jr. Divn.), Court No. 1, Muzaffarnagar, vide order dated 8.2.2008, has rejected the objection and has further directed to issue parwana in accordance to the decree and the Amin was directed to provide possession to respondent No. 1 in accordance to the decree.

Being aggrieved by the order, the petitioner filed Revision No, 39 of 2008, which has been dismissed by the impugned order.

The main objection of the petitioner was that he has already executed a sale deed on 21.12.1998 in respect of the part of the portion in the property in dispute and, therefore, the sale deed dated 2.8.2007 was null and void and since the petitioner is not in possession over the property in dispute, plaintiff-respondent No. 1 was not entitled to get the possession. The said plea has been rejected by the court below on the ground that in the decree dated 7.4.2003 the sale deed executed on 21.12.1998 has been held as null and void and the said order has become final and the execution Court cannot sit over the order passed in the suit and cannot narrow down the scope of the decree. The trial court has relied upon the decision of the Apex Court in the case of Bhawarlal Bhandari Vs. M/s. Universal Heavy Mechanical Lifting Enterprises, and Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, The revisional court has also upheld the order of the Additional Civil Judge relying upon the decision of the Apex Court, referred hereinabove.

Heard Sri C.B. Singhal, learned Counsel for the petitioner and Mohd. Arif, appearing on behalf of the respondents.

Learned Counsel for the petitioner submitted that the identity of the judgment-debtor can be adjudicated in the proceeding u/s 47 of the Code of Civil Procedure. In support of the contention, he relied upon the decision of the Apex Court in the case of M/s. Century Textiles Industries Ltd. v. Deepak Jain and Anr. 2009 (108) RD 120 : 2009 (3) AWC 2841 (SC). He submitted that the part of the portion of the property in dispute has already been sold by the petitioner to Mahipal on 21.12.1998 and the petitioner was not in possession of the property in dispute. Therefore, in the execution proceeding it is to be adjudicated that against whom the decree is to be adjudicated.

Learned Counsel for the respondent submitted that in the order dated 7.4.2003 the objection raised by the petitioner has been considered by the Court and the sale deed dated 21.12.1998 has been held as null and void. The said order has become final.

In the case of M/s. Century Textiles Industries Ltd. v. Deepak Jain and Anr. the decree was sought to be executed against one Deepak Jain, who, according to the decree holder, was no one else but D.K. Jain. Deepak Jain as such was not the party to the suit. On these facts the Apex Court held that : "We have no hesitation in holding that in the peculiar situation arising in the case, the said issue could be adjudicated u/s 47 of the C.P.C., notwithstanding the fact that Deepak Jain was not a party in the suit, wherein the decree in question was passed." The situation, which was before the Apex Court, does not exist in the present case. In the present case in the decision of the suit dated 7.4.2003, the sale deed dated 21.12.1998 by the petitioner in favour of Mahipal has been held null and void. The said order has become final as not being challenged before the higher Court. In the circumstances, on the basis of the sale deed dated 21.12.1998 the sale deed dated 24.7.2007, executed in favour of respondent No. 1, cannot be declared null and void in the execution proceeding. Such plea is devoid of any merit. The Division Bench in the case of Krishna Raj Trading Corporation Vs. Ram Saran Dass and Brothers, has held that the executing court cannot go behind the decree and its validity cannot be questioned. The Apex Court in the case of Bhawarlal Bhandari Vs. M/s. Universal Heavy Mechanical Lifting Enterprises, has held that : "it is well-settled that the executing court cannot go behind the decree unless it is shown that it is passed by a Court having inherent lack of jurisdiction, which would make it a nullity." The Apex Court also in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, has held: u/s 47 all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have not to be determined by the Court executing the decree and not by a separate suit. The powers of Court u/s 47 are quite different and much narrower than its powers of appeal, revision or review. The exercise of powers u/s 47 is microscopic and lies in a very narrow inspection hole. Thus, it is plain that executing court can allow objection u/s 47 to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing.

For the aforesaid reason, I do not find any merit in the writ petition. The writ petition fails and is dismissed.