Execution Second Appeal No.29 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Execution Second Appeal No.29 of 2011(O&M) Date of Decision: November 29, 2011 Ram Phool .....Appellant v. Sudesh Pal and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.C.B.Goel, Advocate for the appellant. ..... RAM CHAND GUPTA, J.(Oral) The present Execution Second Appeal has been filed against judgment and decree dated 21.9.2011 passed by learned Additional District Judge, Faridabad, dismissing appeal filed by present appellant-objector against order dated 22.9.2010 passed by learned Additional Civil Judge, (Senior Division), Faridabad, i.e., Executing Court, vide which objection petition filed by present appellant to the execution of decree in Execution Petition No.18/8 of 2004 filed by respondent-decree-holder against respondent no.2-judgment debtor was dismissed. I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, suit for specific performance of agreement to sell dated 30.1.1996 against respondent no.2-judgment debtor was filed by respondent no.1-decree holder, which was decreed in favour of respondent no.1-decree holder, vide judgment and decree dated 19.11.2003. The said Execution Second Appeal No.29 of 2011(O&M) -2- judgment and decree was contested by respondent-judgment debtor upto Hon'ble Apex Court. However, he lost upto Hon'ble Apex Court and thereafter, the present execution petition was filed by respondent-decree holder against respondent no.2-judgment debtor. Objections under Section 47 of the Code of Civil Procedure (for short `the Code') were filed on behalf of present appellant-objector, though now it is argued that the said objections be treated under Order 21 Rule 97 read with Rule 99 of the Code. The objection taken is that there was earlier agreement in favour of present objector executed by respondent- judgment debtor, i.e., dated 7.4.1995 for a total sale consideration of Rs.4.25 lacs and that the last date for execution of registration of sale deed was 30.6.1997 and that, however, as respondent no.2 failed to honour the agreement, present appellant filed civil suit No.183 of 1998 seeking decree for specific performance of agreement in which respondent no.2-judgment debtor was duly served and, however, he did not appear and did not lead any evidence, and hence said suit was decreed in favour of present appellant- objector vide judgment and decree dated 9.8.1999 and pursuant to the same, sale deed was also executed in his favour by respondent-defendant no.2 and the mutation was also sanctioned in favour of present appellant-objector and the possession was also taken by him and hence, it is contended that he is bona fide purchaser for consideration and he cannot be dispossessed in execution of a decree on the basis of subsequent agreement passed in favour of respondent-decree holder and against respondent no.2-judgment debtor. However, the said objection was dismissed by learned Executing Court by observing that there is collusion between the present objector and respondent no.2-judgment debtor and that the agreement was created and Execution Second Appeal No.29 of 2011(O&M) -3- sale deed was got executed just to defeat the right of respondent-decree holder. Appeal filed by the present appellant-objector against the said order was also dismissed by learned Additional District Judge, Faridabad. It has been vehemently contended by learned counsel for the appellant that the observations given by both the Courts that the present objector has colluded with respondent no.2-judgment debtor is without any basis and that however, he is bona fide purchaser for consideration and that he has parted with major portion of consideration. It is also contended that doctrine of lis pendence is also not applicable in the present case as sale deed was executed as per order of the Court in the execution and that the agreement in favour of present objector is prior in time. However, there is no force in the contention of learned counsel for the appellant. It has been rightly observed by both the Courts below that there cannot be any direct evidence regarding collusion. Factum of collusion is to be inferred from the facts and circumstances of each case. Facts of present case, as detailed above, show that present appellant- objector is in collusion with respondent no.2-judgment debtor and the ante dated agreement was created just to defeat the rights of respondent-decree holder. The agreement in favour of present objector is stated to be dated 4.7.1995 for a total sale consideration of Rs.4,25,000/- and a sum of Rs.3.50 lacs was also allegedly paid at the time of execution of agreement and, however, the time for execution of registration of sale deed was fixed as 30.6.1997. It cannot be believed that after paying major portion of the sale consideration, the time for execution of sale deed would be fixed after about two years. Further present objector waited for about another one year to file the present suit, which was filed on 2.5.1998. Hence, suit was filed after Execution Second Appeal No.29 of 2011(O&M) -4- about three years of the agreement, whereas the suit was already filed by respondent no.1-decree holder against respondent no.2-judgment debtor for specific performance of agreement to sell in his favour, which is dated 30.1.1996. The suit was filed in the year 1997. The said suit was contested by respondent no.2-judgment debtor upto Hon'ble Apex Court. However, in the suit filed by present appellant-objector, respondent no.2-judgment debtor did not appear despite service and proceeded ex parte and ex parte decree was passed in favour of present appellant-objector. Respondent no.2-judgment debtor did not file any application for setting aside ex parte proceedings and ex parte judgment and decree. He also did not file any appeal against the ex parte decree. Rather, sale deed was executed by him in favour of present objector-appellant during pendency of the proceedings initiated against him by respondent-decree holder. During all these proceedings upto Hon'ble Apex Court, he did not disclose that he also entered into an agreement to sell the property in dispute in favour of present appellant objector. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in coming to the conclusion that present objector and respondent no.2-judgment debtor are colluding with each other and that alleged agreement to sell dated 7.4.1995 was created just to defeat the rights of respondent no.1-decree holder. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, Execution Second Appeal No.29 of 2011(O&M) -5- arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 29.11.2011 (Ram Chand Gupta) meenu Judge