Vijay Kumar vs Rajesh Kumar

Ram Chand Gupta, J.—Requests for placing on record the compilation of relevant zimni orders as Annexure P4.

The same is taken on record subject to all just exceptions.

Application stands disposed of accordingly.

Civil Revision No. 1144 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 1.2.2011, Annexure P3, passed by learned Additional Civil Judge, Senior Division, Hoshiarpur.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

Facts relevant for the decision of present revision petition are that Respondent No. 1-Plaintiff filed a suit for possession by way of specific performance of agreement of sale dated 6.3.1998 in respect of property in dispute against present Petitioner-judgment debtor. The suit was decreed vide judgment and decree dated 22.8.2003. Appeal filed by the present Petitioner was also dismissed vide judgment and decree dated 16.11.2003.

Respondent-decree holder filed execution petition before learned Executing Court. Notice of the execution petition was given to present Petitioner-judgment debtor by learned Executing Court for 29.11.2005. Respondent-judgment debtor appeared in person and the following order was passed by learned Executing Court:

Present: Counsel for DH.

JD has appeared in person. There is no stay order of any appellate Court as such draft sale deed be filed for 5.3.2005.

Thereafter judgment debtor did not appear before learned Executing Court. Draft sale deed was filed by decree-holder and as per order of learned Executing Court, Local Commissioner was appointed and the sale deed and judgment and decree was executed in favour of decree- holder and against present judgment debtor. Perusal of various zimni orders passed by learned Executing Court shows that warrants of possession were issued several times and however, possession could not be delivered to decree-holder as per judgment and decree due to hindrance being created by present Petitioner-judgment debtor, in one way or the other. Even police help was ordered to be provided to the decree holder.

Earlier also some objections were filed by close relatives of present Petitioner-judgment debtor, which were dismissed. Thereafter another objections were filed by present Petitioner-judgment debtor, which were also dismissed vide impugned order by learned Executing Court by observing as under:

Main objection of objector/judgment debtors is that no notice of draft sale deed was issued to him and on this account description of property mentioned in sale deed is different than the one mentioned in judgment and decree sought to be executed. I have gone through record of this case and found that judgment debtor had a serious contest to the suit filed by decree holder which was dismissed and he had lost the litigation. Appeal preferred by him was also dismissed on 6.11.2004. This execution was filed on 14.12.2004. So notice was issued to judgment debtor, who put in appearance in person on 29.11.2005 but thereafter did not care to contest the execution. Thus, it does not lie in the mouth of objector/judgment debtor to say that he was not served any notice of draft sale deed and has not himself set aside despite personal service in the execution. So far as mentioning of wrong sides of property in dispute in sale deed by local commissioner is concerned, learned Counsel for objector/judgment debtors could not show me if any prejudice has been caused to judgment debtor. It appears that names of owners of property surrounding the property in dispute have been changed subsequently because agreement relates to the year 6.3.1998 and sale deed has been got executed on 31.3.2005, i.e., after a gap of more than 7 years. Length and breadth of shop which is subject matter of sale deed in question has been correctly recorded. It is not case of objector judgment debtors that shop in dispute is not covered within boundaries mentioned in sale deed dated 31.3.2005. Sale deed in question was got executed by Local Commissioner on 31.3.2005. Warrants of possession were ordered to be issued and could not be executed as judgment debtor had resisted delivery of possession as is evident from record. My learned predecessor had allowed application moved by decree-holder for grant of police help. Before parting with it has been mentioned here that learned Counsel for objector/judgment debtors has relied upon Sukhdev Soni (Died) per L.Rs. v. Ramesh Chandra Sarda 2006 (4) CCC 353 it has been mentioned here that I am in respectful agreement with dictum laid therein. In that case, there was dispute of way, which was not mentioned in agreement, but was incorporated in sale deed. In the case in hand, there is no such situation. So judgment debtor/objector cannot be extended any benefit of law laid down in this ruling. Till today objector/judgment debtors kept mum over this matter for five years altogether. In the given set of circumstances, I am of considered view that objection-petition is merit less and is dismissed as such.

It has been contended by learned Counsel for the Petitioner-judgment debtor that boundaries of the property as given in the sale deed did not tally with the boundaries as given in the plaint and hence, it is contended that sale-deed is not being executed regarding the property as per the judgment and decree. It is also contended that no notice in terms of Order 21 Rule 34 of the CPC was issued to the Petitioner-judgment debtor by learned Executing Court inviting his objections to the draft sale deed and hence it is contended that the same has caused miscarriage of justice.

However, in the present case notice of execution was duly served upon the present Petitioner-judgment debtor. He also appeared and the case was also adjourned in his presence for filing draft sale deed. However, later on he chose not to appear before learned Executing Court. Hence, in view of these facts, it cannot be said that learned Executing Court was required to issue notice to Petitioner-judgment debtor for the draft sale deed. Moreover non-compliance of the requirement of issuing notice to the judgment-debtor of the draft sale-deed does not itself vitiate the sale deed executed under the orders of the Court unless the judgment debtors can show some prejudice. It has been so observed by a Division Bench of Hon''ble Calcutta High Court in Daisy Mantosh v. Kapil Kapoor 2002 (2) ICC 300, on which reliance has been placed by learned Counsel for the Petitioner-judgment debtor.

Moreover it is a case of Petitioner-judgment debtor that the property mentioned in the sale deed executed as per order of Court is not the same, which was subject matter of judgment and decree. There is no plea that he is owner of two separate properties, i.e., one which is the subject matter of judgment and decree and the another regarding which sale-deed has been allegedly executed. If the names of owners of the property surrounding property in dispute have been changed subsequently as the agreement relates to the year 1998, it cannot be said that the sale deed has not been executed as per the judgment and decree. This aspect has been duly considered by learned Executing Court as is clear from the aforementioned observations by learned Executing Court. The objections filed by Petitioner-judgment debtor cannot be said to be bona fine one. Rather the Petitioner-judgment debtor has been creating hindrance in the execution of the decree by one way or the other and the possession of the property in dispute could not be delivered to decree-holder even after expiry of about seven years since the passing of the decree in favour of Respondent-decree holder.

Hence, in view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.