Pt. Sant Lal vs Soni Bai and Another

G.C. Garg, J.—This revision petition is directed against the order of the Executing Court dated 5.5.1991 whereby it directed the Local Commissioner that the sale deed be got registered. Few facts giving rise to this petition, in brief are that Soni Bai filed a suit for specific performance in the year 1979 on the strength of an agreement to sell dated 21.12 1964. The details of the property were specifically mentioned in the plaint to be 30''x 35'' with boundaries. The plaint also stated that the site plan is attached with the plaint. Defendant-petitioner filed written statement. Defendant''s objection was that he never executed the agreement. No objection was raised in the written statement that the property mentioned in the plaint or as described in the site plan attached with the plaint is not the one which is the subject matter of the agreement to sell. The suit was ultimately decreed by the trial Court by judgment and decree dated 20.10.1980. Appeal and second appeal preferred by the defendant failed and the decree passed by the trial Court became final. Plaintiff decree-holder took out execution in June 1986. The defendant-objector preferred objections by alleging that the boundaries of the property in dispute as detailed in the agreement do not tally with the boundaries in the decree. This objection petition was dismissed by the Executing Court by order dated 8.5.1991. No revision was taken against that order. The executing Court after dismissal of the objection-petition appointed Local Commissioner to execute the sale deed by order dated 10.5.1991.

The Local Commissioner moved an application dated 15.5.1991 seeking clarification from the court to the effect that whether the sale deed is to be prepared and got registered as per the agreement or as per the decree. This application was considered and disposed of, in the absence of notice to the judgment-debtor, by passing the following order, at the back of the application itself:

"Heard. Decree sheet and judgment perused. The suit has been decreed on the basis of agreement of sale Ext.P/1 and decree passed in terms thereof. The draft sale deed should be got registered accordingly and further necessary action be taken under the law".

It is this order of the Executing Court which is under challenge in this revision petition.

It may be noticed at the outset that after the passing of the order reproduced above, and subject-matter of this revision, the sale deed was executed and registered. Not only this, Soni Bai after getting the sale deed registered in her favour, further sold the property to third persons.

After hearing learned counsel for the parties, and perusing the record of the trial Court in the original suit, I find that the plaintiff while filing the suit gave description of the property as 30'' x 35''. She has not only mentioned the area, but also gave boundaries thereof, reading as under :-

North H.No. 2144 South Road East Road West H.No. 2145-A.

She had also attached with the plaint, site plan of property in dispute Ex.P-5. The suit was decreed for specific performance of the agreement. The defendant- petitioner at no stage took an objection that area or boundaries detailed in the plaint or in the site plan attached with the plaint were different from the one mentioned in the agreement to sell. Learned counsel for the petitioner by reference to the written statement could not show that such an objection had been taken.

Learned counsel for the petitioner submitted that learned Executing Court ordered the execution and registration of the sale deed in the absence of notice to the petitioner. On a consideration of the matter, I am of the opinion that this contention has no merit. The objection petition filed by the petitioner had been dismissed on an earlier occasion by the Executing Court and that order became final. Once that is so, no further notice was required to be issued for the execution or registration of the sale deed as judgment debtor was not ready and willing to execute the sale deed. It was in this situation that Local Commissioner was directed to execute the sale deed.

Learned counsel for the petitioner further submitted that the property qua which the sale deed has been executed and registered is different from the one detailed in the agreement to sell and once that is so, the sale deed deserves to be set aside.

Again, I find that this contention has no merit. The area and boundaries of the property were indicated in the plaint itself. Not only this, the site plan was attached with the plaint. Defendant-petitioner at no point of time raised any dispute that the details in the plaint were different from the one mentioned in the agreement to sell. During the course of hearing, it could not be disputed that the sale deed has been executed in respect of the property which is clearly described in the plaint. Once that is so no prejudice, what-so-ever, has been caused to the petitioner. The defendant-objector had even preferred appeals against the judgment and decree of the trial Court and did. not take this objection at any stage. Thus in view of the above, I see no ground to interfere. Dismissed. No costs.