Rajendra Singh vs Manjoor Khan

Dr. Vineet Kothari, J.—How the delay in execution of the decree and sale certificate can defeat the equity and execution of decree can be glaringly seen in the present case. The present petitioner Rajendra Singh S/o Brij Mohan Singh has approached this Court aggrieved by the order Annex. 9 dt. 8.5.2009 passed by the learned Executing Court below of learned Additional Dist. Judge No. 1, Bikaner in execution case No. 6/1992--Brij Mohan Singh vs. Manjoor Khan & Ors., rejecting the application of the petitioner under Order 47 C.P.C. read with Sec. 152, Order 7 Rule 3 and Order 20 Rule 3 C.P.C. following its earlier order dt. 26.4.1995, though upon revision petition being SB Civil Revision Petition No. 340/1995-Manjoor Khan vs. Brij Mohan Med against the said order dt. 26.4.1995 by Manjoor Khan son of judgment debtor Bage Khan against the present petitioner Brijmohan Singh, a coordinate bench of this Court while disposing of the said Revision Petition on 24.10.2000 clearly upheld the decree and directed that possession of land in question measuring 1215 sq. yards as per decree-sheet with the neighbourhood description given in para 2 of the suit and directed that the decree be executed.

The controversy before the executing Court below twice over appears to have arisen because of judgment debtor Bage Khan, whose said plot of land was sold in a court auction in favour of father of present petitioner, namely, Brij Mohan Singh on 5.12.1970 vide Sale Certificate Annex. 1 and judgment debtor Bage Khan sold part of plot to the objector in the executing proceedings, namely, Choru Ram, whose son Lal Chand is respondent No. 4 in the present writ petition and is being represented by Mr. S.G. Ojha, learned counsel appearing for Choru Ram.

The purchaser under the court auction, Sh. Brijmohan Singh, filed the suit as the possession of the land sold to him on 5.12.1970 was not handed over to him, namely, Civil Suit No. 4/1987-- Brijmohan Singh vs. LRs. of Bage Khan Bhutta, which came to be decreed on 28.3.1989 vide Annex. 2. That decree become final The operative portion of the judgment and the decree as well as para 2 of the suit is produced below for ready reference:

Reproduction from Plaint

A part of the land on the eastern side of the land of the judgment debtor Bage Khan, whose son Manjoor Khan is now on record, is said to have been sold to Choru Ram Suthar vide sale-deed dt. 24.5.1973. On the basis of this sale-deed, the respondent No. 4 Choru Ram Suthar and his son Lal Chand appears to have raised objections before the learned executing Court that the neighbourhood given in the decree do not match with the Commissioner report and therefore, in execution of decree the possession could riot be handed over since oh the eastern side, the residence of Choru Ram exists.

In the earlier round of objections raised by said Choru Ram, the executing Court below passed an order on 26.4.1995, in which even though the executing court below agreed with the decree holder that he is entitled to the possession of 1215 sq. gaj however, since the neighbourhood does not tally with the decree-sheet, since portion marked as ABCD in the map produced before the executing Court, the plot and residential house of Choru Ram exists, therefore, the objections of said Choru Ram were upheld. The relevant portion of the said order dt. 26.4.1995 is reproduced below for ready reference:

The revision petition filed against the said order by Manjoor Khan, namely, SB Civil Revision petition No. 340/1995--Manjoor khan vs. Brijmohan Singh came to be decided on 24.10.2000 with the following observations:

Having gone through the impugned order, I find that the learned court below has recorded a finding that the property described by Serial No. 2 in the Site Plan submitted by the Commissioner is the property of which the decree holder is entitled to take possession.

The learned counsel for the petitioner contends that even according to the decree holder the petitioner had sold the property to Choru Ram and claimed possession of the property which is now in possession of Choru Ram, as such the learned Executing Court was in jurisdictional error in directing the property in petitioner''s possession to be delivered to the decree holder.

The learned counsel for the legal representatives of the non-petitioner No. 4 submits that the property in his possession could not be directed to be delivered to the decree holder as the decree does not relate to the property purchased by him. He purchased the property way back in the year 1973 while the suit for possession had been filed in the year 1981 wherein Choru Ram was not impleaded as party defendant.

The learned counsel for the decree holder submits that since he had purchased the property under a Sale Certificate dt. 5.12.1970 with respect to a property measuring 1215 Dar gaj and since out of that property of the petitioner has sold substantial portion to Choru Rain on which fresh constructions have been raised with the result that the boundaries of the property have come to be changed, but then the decree holder is entitled to possession on 1215 gaj property as per the sale certificate.

Having heard the learned counsel and having perused the decree sheet, in my view the decree holder is entitled to get possession of the property as mentioned in the decree sheet and nothing beyond it. Simply because the area of the property in measurement is not available on the site as per the decree sheet, but since the boundaries of the property are mentioned in the decree sheet, the decree holder cannot claim any property beyond that which falls within the boundaries mentioned in the decree sheet.

Accordingly the revision petition is disposed of with a direction that the learned Executing Court shall proceed to execute the decree by delivering possession of the property as described in the decree sheet by four boundaries and nothing more.

Thereafter also, since the possession could not be given to the decree holder, he again filed an application before the learned executing court for giving the possession and fruits of the decree to him, but again the said application came to be rejected by the learned executing Court vide order dt. 8.5.2009 reiterating the same stand that since the neighbourhood has changed on account of sale of land by Bage Khan to Choru Ram, the decree with description of property given in decree read with para 2 of the suit cannot be executed. The relevant portion of para 8 of the impugned order is quoted below for ready reference:

Mr. Manoj Bhandari, learned counsel appearing for the petitioner--decree holder urged that the whole confusion and mess has been created by the executing Court below on the objection of the purchaser-objector Choru Ram, since he purchased part of the land from the disputed land under the decree which was sold to the present petitioner''s father under the court auction by a sale certificate vide Annex. 1 dt. 5.12.1970, but the said sale having taken place later on by the sale-deed dt. 24.5.1973, the said sale deserves to be ignored and the possession of land in question was required to be given to the petitioner, but since the other neighbourhood admittedly tallied with the decree and para No. 2 of the suit on the (Sic) of which the decree in favour of the present petitioner''s father was passed the Court below and the same has become final.

On the other hand, Mr. S.G. Ojha, learned counsel for the respondent No. 4 stoutly defended the impugned order and urged that since the neighbourhood did not tally as per the Commissioner report given to the executing court, the execution of the decree could not be made against the present respondent No. 4-objector Choru Ram and his son Lal Chand as they are bonafide purchasers of the plot of land in question for consideration and their possession cannot be disturbed.

Having heard the learned counsel for the parties, this Court is of the opinion that the learned executing Court below has erred twice over. It has been unnecessarily swayed by existing neighbourhood as per Commissioner report without ascertaining the changes made during the long period of 30 years when the sale certificate of 1970 and the decree of 1989 in favour of the present petitioner could not be executed for one reason or other. This Court is of the opinion that the sale having been made by the judgment debtor in favour of objector Choru Ram on 24.5.1973, after the sale certificate dt. 5.12.1970 in favour of petitioner''s father Brijmohan Singh was made to avoid the sale certificate and later on the decree, which was passed in favour of the petitioner''s father on 28.3.1989. The said sale-deed even though may have been produced before the court below, but it has not been produced before this Court at any point of time even during pendency of this writ petition for last 4 years, for the reasons best known to the respondent-objector. It is not even clear whether it is a registered sale-deed or simply an agreement to sell. Be that as it may, the learned executing court below ought to have ascertained by relevant evidence in this regard as to whether the neighbourhood as given in the decree and para 2 of the suit has changed on account of aforesaid sale in favour of respondent No. 4 or not. If the change is on that account, it was liable to be ignored, since other neighbourhood prima facie tallied with the decree and description of property given in para 2 of the suit, one fails to understand that despite the directions of this Court while deciding the revision petition on 24.10.2000 that possession of house with land appurtenant if any measuring 1215 Sq. Gaj has to be given to the petitioner-decree holder as per the decree-sheet in turn per para 2 of the description of property given in the suit, how the executing court below has again upheld the objections of objector-respondent No. 4 by the impugned order.

Both the orders of the learned Court below are therefore, liable to be set aside, namely, the order dt. 26.4.1995 (Annex. 5) and impugned order Annex. 9 dt. 8.5.2009. The writ petition is accordingly allowed and aforesaid two orders of the executing Courts below are set aside and the executing Court below is directed again to execute the decree in terms of description of neighbourhood given in the decree itself read with para 2 of the suit after ascertaining by recording statements of persons from that neighbourhood as to whether the said change in the neighbourhood occurred after Sale Certificate dt. 5.12.1970 in favour of the petitioner or was on account of impugned sale by judgment debtor dt. 24.5.1973 in favour of Sh. Choru Ram or not. If it is so, that sale-deed or other encroachment cannot stand in the way of execution of decree in favour of the, present petitioner and the necessary orders in this regard can be passed by the executing Court below in terms of powers conferred upon it under the provisions of Section 47 C.P.C. read with Order 21 Rule 101 C.P.C. The learned Executing Court is further directed to complete the execution proceedings and execute the decree with a period of six months from today and report the matter back to this Court. No order as to costs. A copy of this order be sent to the parties concerned and the learned Court below forthwith.