Swastik Empoules vs Maya Ram and Others

A.N. Jindal, J.—On issuance of the warrant of possession of the total land measuring 19 Marias in an execution filed by Respondent

decree-holder Maya Ram (herein referred as ''the decree holder''), the Petitioner - M/s Swastik Empoules village Mamidi, Tehsil Jagadhri District

Yamuna Nagar (herein referred as ''the Petitioner'') filed the objection petition on the ground that civil court had no jurisdiction to execute the

certificate of sale and deliver the possession on the application of the decree-holder. The objection petition was dismissed on 15.6.2005 and its

appeal was also dismissed on 5.12.2009. Hence, this revision petition.

Briefly stated the facts are that one M/s Kamboj Rubber Industries had obtained loan through its proprietor Suraj Bhan and the collateral

security, namely Dalel Singh s/o Sarda Nand mortgaged his property in favour of the Yamuna Nagar Central Cooperative Bank Ltd. - the loaner

bank. Since the mortgager could not return the money, therefore, his property was auctioned by the Registrar of Cooperative Societies on

11.9.2003, which was purchased by the decree holder along with the construction thereon for a sum of Rs. 10,40,000/-. The sale was confirmed

by the Deputy Registrar, Cooperative Societies, Karnal in his capacity as Registrar and the sale certificate dated 12.1.2004 was issued to the

decree holder. Thereafter, he moved an application before the Civil Court for getting possession of the land, so purchased.

The other facts in the background are that the present Petitioner had filed a civil suit against Dalel Singh and Ors. for possession by way of

specific performance on the allegations that the Company had agreed to purchase the disputed land from Dalel Singh. Along with the suit, an

application for grant of temporary injunction was also filed, which was dismissed and it was further held that the decree holder would be entitled to

seek possession in due course of law. In response to the aforesaid execution filed by the decree-holder, notice was issued to the other parties. The

Petitioner moved the objection petition along with numerous objections including the maintainability and jurisdiction to try the execution petition, but

those objections were dismissed by the executing court. However, this Court while sitting in revision had remitted back the matter to decide the

objection petition afresh, in accordance with law.

It is further pertinent to mention that the Petitioner - objection Petitioner is not the original owner, but he is a lessee, whose lease has already

stood expired. It may further be observed that the Petitioner had also filed Civil Suit No. 106 of 2003 against the decree-holder, the loaner bank

as well as Dalel Singh for possession on the basis of an agreement to sell dated 24.5.2003 purported to have been executed by Dalel Singh in his

favour, which was dismissed on 7.1.2010 by Civil Judge (Sr.Divn.), Yamuna Nagar at Jagadhri. The civil court in the said suit also refused to

recognize the rights of the Petitioner over the land and it observed as under:

...It is not in dispute that bank had already recovered its loan amount by putting the disputed property in an open auction which has been

purchased by Maya Ram being the highest bidder and Plaintiff has already dispossessed from the same. Admittedly, first right over the disputed

property was of the bank being mortgagee which has been satisfied and now the property is free from all encumbrances because Maya Ram has

become absolute owner of the same.

The Civil Court further observed that Dalel Singh never entered into any agreement to sell the suit property with the Petitioner (Plaintiff therein) nor

agreement Ex.P1 and receipt Ex.P2 bear his signature, rather the agreement is a result of fraud.

Thus, the net result is that the Petitioner failed to establish his title of any type over the suit property and, therefore, he cannot claim any right

over the same.

As regards the argument with respect to the jurisdiction of the civil court to try the execution petition, it may be observed that Section 80 of the

Haryana Cooperative Societies Act (for brevity ''the Act'') makes it crystal clear that after the sale certificate is issued by the Registrar, then the

holder of the certificate could move the civil court to seek delivery of possession. Earlier also, this Court after hearing the counsel for the Petitioner

at length, though had not specifically observed with regard to the jurisdiction of the civil court, yet the order reveals that the case was remitted back

to the executing court to decide afresh, which means that the Petitioner had raised the argument with regard to jurisdiction, which was impliedly

turned down.

In any case, in view of the clear-cut indication as given Section 79 and Sub-section (3) of Section 80 of the Act, it cannot be said that civil court

has no jurisdiction to try the application for delivery of possession, when the decree holder has a sale certificate in his favour, issued by the

competent authority.

As regards the contention that the order was passed in summary nature and the court was bound to frame the issues, receive the evidence and

then decide the case. In this regard, it is observed that since the title of the property had already been decided by the civil court, therefore, it was

not appropriate for the Executing Court to put the clock back and frame the issue and receive evidence. The court had passed a detailed judgment

touching all the issues and the appeal was also dismissed, therefore, under these facts and circumstances of the case, it was not essential for the

Executing Court to adopt a lengthy procedure and make futile exercise for disposal of the objection petition.

Hence, finding, no grounds to interfere, the petition is dismissed.