ESA No. 27 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- ESA No. 27 of 2009 Date of decision: August 7th, 2009 Gurdial Singh ........ Appellant Versus Ranjit Singh and others .......Respondents Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Padam Jain, Advocate for the appellant Mr. Naresh Kaushal, Advocate for respondent No. 1 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is an appeal against the judgement dated 30.05.2009 passed by the Additional District Judge, Kapurthala, vide which the appeal against the order dated 16.09.2008 passed by the Civil Judge (Sr. Division), Kapurthala, dismissing the objections petition filed by the objector/appellant was passed. The relevant facts of this case are that Ranjit Singh, Respondent No. 1 is the decree holder and Gurbax Singh, Respondent No. 2 is the judgement debtor. Ranjit Singh, Respondent No. 1, instituted a suit on 27.10.1999, for specific performance of the agreement to sell dated 07.04.1998, with respect to the land measuring 9 kanals 15 marlas. The same was decreed on 03.01.2002. Thereafter, ESA No. 27 of 2009 2 Ranjit Singh, Respondent No. 1, filed an execution petition against Gurbax Singh, respondent No. 2, for execution of the decree dated 03.01.2002. The present objector/appellant filed objections being aggrieved with the same on account of the fact that he had purchased a land measuring 4 kanals 1 marlas out of the total land of 9 kanals 15 marlas, which is the subject matter of dispute, vide sale deed dated 20.11.1998 and a mutation, on the basis of the registered sale deed, was sanctioned on 15.03.1999 vide mutation No. 1937. It is obvious from the facts that sale deed dated 20.11.1998 of the appellant/objector and subsequent thereto mutation sanctioned on 15.03.1999 was much prior to the institution of the suit for specific performance. Learned counsel for the parties have been heard. In the present case, the appellant/objector had moved an application, raising objections under Order XXI Rule 99 CPC. On the facts of this case, the only remedy available to the appellant is to file the objections. His objections have been dismissed by the executing Court without framing the issues and without providing opportunity to the parties to produce their respective evidence in their defence. Learned counsel for the appellant submitted that the proper course available with executing Court was to frame the issues and then decide the same. Order XXI Rule 99 of the CPC reads as follows:- “Dispossession by decree holder or purchase (1) Where any person other than the judgement-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance ESA No. 27 of 2009 3 with the provisions herein contained.” Order 21 Rule 101 of the C.P.C. Also reads as follows:- “Question to be determined-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.” The proposition of the law as laid down by the Apex Court in the case of 'Ashan Devi and anr. v. Phulwasi Devi and others', 2004(1)RCR (Civil) 38 as relied on the judgements of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and anr., 1997(1) RCR (Rent) 332 (SC) and some other cases, is as follows:- “21. The above mentioned decided cases of this Court clearly indicate that the provisions of Order XXI Rules 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree holder and the third parties in the executing proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits. 30. As the appellate Court, having rejected the Objectors' application under Order XXI Rule 99, has not in greater details gone into the contested issues on merits, it is necessary to set ESA No. 27 of 2009 4 aside the impugned order of the High Court and remand the case to it for decision of the appeal afresh in accordance with law.” Thus, taking into account the Order XXI Rules 98 and 100 as well as the case law cited, in support of the claim, in the cases of 'Ashan Devi' (supra), 'Jagroop Singh and others v. Boria Khan (dead) through Lrs and others', 2009(1) RCR (Civil) 697, 'Baljit Singh v. Balkar Singh', 2001(1) RCR (Civil) 180 , 'Pohlo Ram Sharma and ohers V. Narinder Singh Randhawa and others, 2008(1) RCR (civil) 442, as also in the case of 'Ayyappan Pillai v. Raveendranathan', 1999(2) Civil Court Cases 228 (Kerala) show that the executing Court requires to adjudicate upon on all the questions mentioned in the said rules, to consider the right and title with all relevant material as if it was a suit. Learned counsel for respondent No. 1 does not dispute the proposition of law, but however, submitted that sale deed dated 20.11.1998 is a sham transaction. The said transaction has been entered into between the parties without any consideration, and hence, in the facts of the present case, to adjudicate the matter, the Court was not required to unnecessarily involve a detailed enquiry or collection of evidence or permit framing the issue or decide the same as a suit. He invited attention of the Court's to para 12 of the judgement passed by the Additional District Judge, wherein the following observations were made:- “.......As per this agreement to sell dated 07.04.1998, it was agreed between the decree holder and the judgement debtor to execute the sale deed on 30.11.1999. But the sale deed upon the basis of which objector has filed the objections, has been got executed on 20.11.1999, so as to frustrate the claim of the plaintiff for getting the sale deed executed in his favour. Further more, the ESA No. 27 of 2009 5 execution of the sale deed in question, photo copy of which is on the file, also establishes that no sale consideration has been paid by the objector to the JD in the presence of the Sub Registrar. Rather, there is a recital in the sale deed that the vendor has already received the sale consideration from the vendee. There is recital in this photo copy of the sale deed that the possession of the land sold by the JD to the objector, has been delivered but the objector has not placed upon the file any revenue record to prove that he is depicted in the possession of the part of the suit property purchased by him, for the reasons best known to him. The JD has nowhere pleaded in his written statement that he has sold part of the suit property to Gurdial Singh. So it is for the first time when the objector has chosen to file the objection on 09.08.2008, when the Executing court has already directed the JD to execute the sale deed by the next date of hearing i.e. 09.08.2008, failing which the Local Commissioner was to be appointed for execution of the sale deed. Execution has been filed on 22.10.2005, but even then objector had waited for three years to file the present objections. Perusal of the appeal further shows that JD Gurbax Singh and objector Gurdial Singh belonging to one village i.e. Pargez Nagar. So, it is not possible that Gurdial Singh was having no knowledge regarding entering into agreement to sell by co-villager Gurbax Singh with Ranjit Singh. There is every possibility that Gurdial Singh will be knowing that suit has been filed against his co-villager Gurbax Singh for the specific performance of the agreement to sell. He ESA No. 27 of 2009 6 must be knowing that the suit has been decreed against Gurbax Singh and further the execution has been filed against Gurbax Singh. The date of filing of the objections i.e. 09.08.2008 also shows that the objector was having the knowledge regarding the execution proceedings.” In order to substantiate his arguments that in these circumstances, issues were not required to be framed, reliance has been placed on the judgement rendered in the case of Minakshi Saini v. Gurcharan Singh Bharmra, 2002(2) RCR (Civil) 323. Learned counsel for respondent No. 1 further submitted that it was not a mandate of law to allow the framing of the issue to a third party, who filed objections before the executing Court and relied on the judgements in the cases of 'Silverline Forum Pvt. Ltd. v. Rajiv Trust and another, AIR 1998 (Supreme Court) 1947 (1) and Minakshi Saini (supra). Taking into consideration the provisions of Order XXI Rules 97, 89,99, 100, 101 and 102 of the Code of Civil Procedure, as well as the case law cited by learned counsel for the parties, it is apparent that the same shall have to be applied in the facts of each case. In the present case, the part of the suit property had been purchased by the appellant-Gurdial Singh from Gurbax Singh on 20.11.1998 vide registered sale deed and mutation of which was sanctioned on 15.03.1999. Ranjit Singh instituted a suit against Gurbax Singh on 27.10.1999, i.e. after the expiry of more than 11 months when the property in dispute had already been sold by Gurbax Singh to Gurdial Singh. The sale deed in favour of the objector/appellant was executed much prior to the institution of the suit for specific performance. Upon coming to know of the pendency of the execution and the threatened act of respondent No. 1, the appellant filed objection petition before the executing Court on the ground that he is owner of the property in dispute. The ESA No. 27 of 2009 7 sale deed in favour of the appellant is dated 20.11.1998, which is ten months prior to the filing of the suit by respondent No. 1 on 27.10.1999 and whereas the decree was passed on 03.01.2002. The present is not a case where the sale deed or the transaction is during the pendency of the suit. Hence, the only bar to the maintainability of the objections under Order XXI Rule 102 of the Code of Civil Procedure is not applicable in the facts of the present case. That being so, the appellant, who has sale deed in his favour prior to the filing of the suit, has a right to prove the same. The basis on which the objections were dismissed, are not enough to throw out the right of the appellant to prove his sale deed. The sale deed of the appellant has been held to be a sham transaction without having recorded any finding. If it was a sham transaction, the same could have been with regard to the entire land i.e. 9 kanals 15 marlas and not just 4 kanals 1 marla. The appellant cannot suffer for the conduct of the judgement-debtor in not having pleaded in his written statement that he has sold the part of the suit property to Gurdial Singh-appellant. It could be that the findings of the Court below are true, however, there may be a chance that the same are not true. Failure to grant an opportunity to the appellant to prove his sale deed may result in miscarriage of justice. Failure on the part of the Courts below to follow the procedure has caused great prejudice to the appellant in the facts of the present case. The judgement relied upon by the respondent in the case of 'Silverline Forum Pvt. Ltd. v. Rajiv Trust and another', AIR 1998 (Supreme Court) 1974 (1) does not help in the facts of the present case. The aforesaid was a case of sub tenant, who had created an other sub tenancy under him so as to bind the landlord. No doubt, it was held that the adjudication need not necessarily involve a detailed enquiry or collection of evidence, but at the same time, it was also observed in paras 12 and 13 of the said judgement that:- ESA No. 27 of 2009 8 “12-13. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.” Similarly, the judgement rendered in the case of Minakshi Saini (supra), as relied upon by learned counsel for the respondent, is also not applicable in the facts of the present case, as it was a case, where the land was sold to the objector during the pendency of the proceedings and the same was hit by the principle of lis pendens. In any case even in these judgements, it was held that the Court can frame issue and allow adducing of evidence, if the facts and circumstances so warrant. A reading of the judgements cited by learned counsel for the respondent show that only in a case where the objectors are found to be frivolous and filed with an object to delay the proceedings, the same can be disposed of summarily. As already discussed above, it is apparent that the objector in this case had laid his claim prima facie on the basis of registered sale deed dated 20.11.1998 and mutation, which was sanction on 15.03.1999 vide mutation No. 1937, which was much prior to the filing of the suit. Objection under Order XXI Rule 99 could not have been dismissed without framing the issues and without ESA No. 27 of 2009 9 granting an opportunity of being heard. In view of the discussion made above, the appeal is accepted and the order dated 16.09.2008 passed by Civil Judge (Sr. Division) Kapurthala, dismissing the objection petition filed by the objector and the judgement dated 30.05.2009 passed by the Additional District Judge, Kapurthala, thereby affirming the order of the Executing Court and dismissing the appeal filed by the objector/appellant, are set aside. The matter is remanded back to the executing Court, for adjudication afresh, after framing the issues in the interest of justice. Keeping in view the fact that the matter is pending since long, the executing Court is directed to expedite the same, as early as possible, preferably within six months. However, it is made clear that the observations made in the present case would not have any bearing on the merits of the case. (Nirmaljit Kaur) Judge August 7th 2009 mohan Whether to be referred to the Reporter: Yes/No