Suresh Kumar Soni vs Ramesh Chand Jain

Bela M. Trivedi, J.—The present second appeal filed u/s 100 of CPC, by the appellant-objector arises out of the judgment and decree dated 8.4.11 passed by the District Judge, Jaipur District, Jaipur (hereinafter referred to as ''the appellate court'') in Civil Appeal No. 18/09, whereby the appellate court has confirmed the judgment and decree dated 30.1.09 passed by the Civil Judge, Jr. Division, Sanganer, District Jaipur (hereinafter referred to as ''the executing court'') in the Execution Case No. 7/07. Before proceeding further on the merits of the appeal, it may be stated that during the courts of arguments, the learned counsel Mr. Sudesh Bansal for the respondent-decree-holder had drawn the attention of the court that the appellant-objector had also filed an application u/s 47 of CPC before the executing court, though his application under Order XXI Rule 97 of CPC raising same objections against the execution of the decree in question was pending.

The learned Sr. counsel Mr. M.M. Ranjan for the appellant, in view of the said submission made by the learned counsel Mr. Sudesh Bansal for the respondent, submitted an application dated 5.9.12 seeking permission to withdraw the present appeal. However, the learned counsel for the respondent has raised the objection against permitting the appellant to withdraw the appeal, by filing the reply dated 6.9.12. It has been contended interalia that the application u/s 47 of CPC filed by the appellant-objector was not maintainable and that the present appeal, which arises out of the order passed by the executing court on the application filed under Order XXI Rule 97 of CPC, is pending since last more than one year, and in which the interim order was also granted by the court, which had adversely effected the respondents. The court, therefore, considering the objections raised by the learned counsel Mr. Bansal for the respondent, did not permit the learned counsel for the appellant to withdraw the present appeal and directed him to make his submissions on the merits of the appeal.

So far as the merits of the appeal are concerned, it appears that initially the respondent-original plaintiff had filed the suit being No. 509/96 against one Ashok Kumar and others-original defendants seeking demolition of the construction raised on plot No. 208 and for possession of the said plot. It was alleged in the said suit that the plaintiff was the owner of the plot No. 208, purchased by him from one Krishna Bihari, through a registered sale-deed dated 10.4.85, and that the said Krishna Bihari had purchased the said plot in an auction sale held by the Gram Panchayat, Bhankrota. It was also alleged that the said defendant Ashok Kumar had encroached upon the plot No. 208 belonging to the plaintiff and had raised illegal construction thereon. In the said suit the defendant Ashok Kumar had filed the written statement denying the allegations made in the plaint and further contending interalia that he had purchased the plot No. 209 from Gram Panchayat, Bhankrota and had put up construction on the plot No. 209. He had also contended that he had already sold out the plot No. 209 to one Amar Singh by registered sale-deed on 2.3.90. In the said suit the subsequent purchaser Amar Singh therefore was impleaded as the party-defendant No. 6. The said suit was decreed by the Civil Judge (JD), Sanganer, District Jaipur vide the judgment and decree dated 23.8.06. Since nobody challenged the said judgment and decree before the higher forum, the respondent-plaintiff filed the execution proceedings before the executing court. When the Nazir went to take possession of the plot No. 208 for the execution of decree, the present appellant Suresh Kumar resisted the Nazir from taking possession of plot No. 208, and then filed the objection application before the executing court under Order XXI Rule 97 of CPC. The said objection application was dismissed by the said executing court vide the judgment and order dated 30.1.09. Being aggrieved by the same, the appellant had preferred the appeal being No. 18/09 before the appellate court, which has been dismissed vide the impugned judgment and order dated 8.4.11. Being aggrieved by the said order of the appellate court, the present second appeal has been filed by the appellant u/s 100 of the CPC.

It has been sought to be submitted by the learned senior counsel Mr. Ranjan for the appellant that the both the courts below had mis-appreciated the evidence on record and recorded the findings against the appellant which are perverse, so far as the possession and ownership of plot No. 208 are concerned. According to Mr. Ranjan the executing court was obliged to decide all questions raised by the appellant, as per Rule 101 of Order XXI of CPC and was also obliged to decide the same as if it was the suit. Mr. Ranjan also submitted that the appellant was entitled to file an application u/s 47, though his application under Order XXI Rule 97 of CPC was pending at the relevant time.

However, the learned counsel Mr. Sudesh Bansal for the respondent taking the court to the judgment and decree passed in the suit and also to the impugned orders passed by the trial and the appellate court submitted that there being no illegality or perversity in any of the orders passed by the concerned courts, this court should not interfere with the findings recorded by the said courts. According to Mr. Bansal, the appellant by filing separate applications i.e. u/s 47 as well as under Order XXI Rule 97 of CPC, had misused the process of law and the appeal should be dismissed with heavy cost.

Having regard to the submissions made by the learned counsels for the parties and to the record of the case, it transpires that initially one Mr. Krishan Behari had purchased the plot No. 208 in the auction held by the Gram Panchayat Bhankrota, District Jaipur on 10.4.85 and thereafter the present respondent i.e. original plaintiff and decree-holder had purchased the said plot No. 208 from the said Krishan Bihari on 17.9.85 through a registered sale-deed. It further appears that the original defendant No. 1 Ashok Kumar had purchased the plot No. 209 from the said Gram Panchayat Bhankrota on 22.10.82 and Patta of the said land was allotted to him on 23.5.83. It further appears that the said Ashok Kumar raised construction, which according to the respondent-plaintiff was on plot No. 208 and not on plot No. 209 and, therefore, he filed suit for demolition of the said construction and for recovery of possession of plot No. 208 from the said Ashok Kumar. The said Ashok Kumar filed his written statement in the said suit denying the allegations and further contending that he had already sold out the plot No. 209 to one Shri Amar Singh by a registered sale deed dated 2.3.90. It further appears that the said Amar Singh was impleaded as party-defendant No. 6 in the said suit, however he did not resist the suit and the said Amar Singh further sold plot No. 209 to one Narendra Singh by executing registered sale deed on 16.12.2000, and the said Narendra Singh sold out the said plot No. 209 to the present appellant Suresh Kumar by executing the registered sale deed dated 1.8.05.

In the suit filed by the respondent-plaintiff, the defendants did not lead any evidence, however, the learned counsel appearing for the defendant No. 1. i.e. Ashok Kumar had cross-examined the witnesses examined by the respondent-plaintiff. The trial court after appreciating the evidence on record decreed the suit vide the judgment and order dated 23.8.06. It appears that the said decree having not been challenged by any party, became final and hence the respondent-decree-holder filed the execution proceedings before the executing court. In the said execution proceedings, the present appellant filed objection application under Order XXI Rule 97 contending interalia that he had purchased the plot No. 209 from Shri Narendra Singh on 1.8.05 and that the construction was on plot No. 209 and not on plot No. 208. The appellant also filed similar application raising objection against the execution of the said decree u/s 47 of CPC though his application under Order XXI Rule 97 of CPC was pending.

Thought it was sought to be submitted by the learned counsel Mr. Ranjan for the appellant that the appellant was entitled to file separate application u/s 47, though application under Order XXI Rule 97 of CPC was pending, this court does not find any substance in the said submission. From the plain reading of the Section, it clearly appears that Section 47 of CPC does not enable any party to file any application under the said section. It only envisages that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, are required to be determined by the Court executing and not by separate suit. As such, the appellant being not the party or the representative of the party to the suit in which the decree was passed and which was sought to be executed, the appellant could not have filed any such application u/s 47 of the CPC, more particularly when he had already filed the application under Order XXI Rule 97 of CPC before the same court. Such a conduct on the part of the appellant in filing the separate application u/s 47 as well as under Order XXI Rule 97 of CPC clearly appears to be a misuse and abuse of the process of law.

So far as the order passed by the executing court in the application filed by the appellant under Order XXI Rule 97 of CPC is concerned, it has been held by the executing court that the issues pertaining to the plot No. 208 and 209 have already been decided by the trial court in the suit and as per the report of the Nazir also, the appellant-objector was found to be in possession of plot No. 208. It has also been held that the appellant being not the owner of the plot No. 208, was also not in lawful possession of the said plot No. 208. The executing court having not found any substance in the objections raised by the appellant, has dismissed his application under Order XXI Rule 97 of CPC. The appellate court also by giving detailed judgment and order dismissed the appeal of the appellant. In the instant appeal, the learned senior counsel Mr. Ranjan for the appellant has failed to point out any perversity or illegality in the said judgments and orders passed by the courts below and has also failed to point out any question of law, much less the substantial questions of law involved in the instant appeal. Under the circumstances, there being concurrent findings of facts recorded by the courts below, this court does not find any substance in the present second appeal filed u/s 100 of CPC. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.