Civil Revision No. 5054 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5054 of 2010 Date of decision:- 16.9.2010 Nirdosh Kumar ......petitioner vs. Vijay Kumar and others ......respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Sudeep Mahajan, Advocate for the petitioner Mr. Som Nath Saini, Advocate for respondent No. 2. HEMANT GUPTA, J (ORAL) Challenge in the present revision petition is to the order passed by learned Executing Court on 12.6.2010 whereby the learned Executing Court framed issues and stayed the execution proceedings in the objections filed by Tarlok Kumar, Objector. The petitioner filed a suit for specific performance of an agreement dated 12.9.1997 executed by Vijay Kumar, the owner of the suit property. The said suit for specific performance was decreed by learned trial Court on 8.9.2004. The first appeal filed by the defendant was dismissed on 19.8.2008. The regular second appeal filed by defendant was also dismissed on 4.3.2009. Thereafter, in the execution of the decree for specific performance, the sale deed has been executed on 19.6.2009. At the stage of taking possession, in pursuance of the decree of the sale deed, the respondent No. 2-Tarlok Kumar filed objections under Order 21 Rule 97 of Civil Revision No. 5054 of 2010 -2- Code of Civil Procedure alleging himself to be in physical possession of the suit property in terms of an agreement dated 9.10.1996. It is also pointed out that he has filed a suit for specific performance against Vijay Kumar. In view of the said fact, respondent No. 2 (referred to above as the 'Objector') claimed title over the suit property and sought protection of his possession. In the said objection, learned trial Court has passed order on 12.6.2010, the subject matter of the present revision petition. Learned counsel for the petitioner has vehemently argued that the Objector has filed suit for specific performance on 4.5.2009 of an agreement dated 9.10.1996 after the dismissal of second appeal. The petitioner has produced a copy of the plaint filed by the Objector-Tarlok Kumar. The said plaint shows that the Objector relies upon the aforesaid agreement for a total sale consideration of Rs. 2,00,000/- out of which Rs. 70,000/- has been allegedly paid as an earnest money by the plaintiff to defendant at the time of execution of agreement of sale and the balance sale consideration of Rs. 1,30,000/- was to be paid at the time of execution of the sale deed. The Objector has recited in the plaint that no time was fixed for execution. The plaintiff has made the following averments in the plaint: - 1. That, defendant is owner of the property as detailed and described in the head note of the plaint and he has entered into an agreement dated 9.10.1996 to sell the said property in favour of plaintiff in worth of Rs. 2,00,000/- (Rs. Two lacs only) 2. That, the plaintiff paid Rs. 70,000/- as an advance earnest money to the defendant at the time of execution of agreement of sale which was received by him in the presence of the Civil Revision No. 5054 of 2010 -3- witnesses at the time of execution of agreement of sale dated 9.10.1996 and Rs. 1,30,000/- (One lakh thirty thousand only) was to be paid as a balance amount at the time of execution of sale deed. 3. That, it was agreed between the parties the sale deed was to be executed and got registered in favour of plaintiff/vendee, whenever he asked to defendant and in the month of March 2009 plaintiff approached the defendant to get execute and registered the sale deed in his favour but he refused to execute the same. It is contended by learned counsel for the petitioner that since no time was fixed for execution of the sale deed, as per the averments made in the plaint, the cause of action to file the suit for specific performance on the basis of the aforesaid agreement would arise on 9.10.1996 i.e., the date of agreement itself. In terms of Article 54 of the Limitation Act 1963, such suit could be filed within a period of three years from the said date. Since, the suit has been filed on 4.5.2009 therefore, the suit filed by Objector is clearly beyond the period of limitation. The said argument is raised to show that the objections filed by the Objector are patently mala fides and has been filed to delay the execution of the decree so as to defeat the right possession of the property of the petitioner. Learned counsel for the petitioner has relied upon the judgment of this Court reported as 2008(4) Civil Court Cases 185 Satish Kumar vs. Shanti Devi & ors to contend that there is no necessity to frame issues and to give opportunity to lead evidence to the parties where the facts are clear. It is thus contended that the opportunity given by the learned Executing Court to lead evidence on the objections filed by the Objector are prejudicial to the interest of the petitioner and thus such objections warrant Civil Revision No. 5054 of 2010 -4- summary dismissal. On behalf of the Objector, it has been argued that he is in possession on the basis of the prior agreement to sale dated 9.10.1996 and therefore, he is entitled to prove his possession and his right over the suit property. Such right is to be examined by the Executing Court in terms of Order 21 Rule 101 and Order 21 Rule 99 of the Code of Civil Procedure. Learned counsel for the Objector has also relied upon a Supreme Court judgment reported as (2002) 7 S.C.C. 50 Tanzeem-E-Sufia vs. Bibi Haliman and others to contend that the Objector has a right to protect his possession in execution of the decree as per the facts on record. Learned counsel for the Objector has further pointed out that in terms of the order passed by the Executing Court, he has concluded the evidence and the case is fixed for evidence of the decree-holder, therefore, the argument that the intention is to delay the proceedings is not tenable. I have heard learned counsel for the parties at some length and find that the order passed by the Executing Court suffers from patent illegality and suffers from material irregularity. Firstly, the argument that the Objector has concluded his evidence and there is no attempt to delay the proceedings need to be considered. Even after the Objector has concluded his evidence, the matter will not rest with the conclusion of the evidence of the decree-holder. An order passed in the proceedings under Order 21 Rule 101 is a decree and therefore appealable. Another series of litigation arising out of the objections filed by the Objector cannot be ruled out even if the objections are frivolous and mala fides. Therefore, mere fact that the Objector has concluded his evidence is not a ground to examine the Civil Revision No. 5054 of 2010 -5- illegality and validity of the order under challenge in the present revision petition. As per the averments recited in the plaint, the agreement was executed on 9.10.1996 on payment of Rs. 70,000/- as earnest money. There is no period fixed for execution of the sale deed. Therefore, in terms of Article 54 of the Limitation Act, 1963 the cause of action to seek specific performance of the aforesaid agreement would arise from the date of agreement itself. In view of the aforesaid fact, the filing of the suit for specific performance on 4.5.2009 is prima facie beyond the period of limitation. The judgment in the case of Tanzeem-e-Sufia's (supra) is not helpful to the arguments raised by learned counsel for respondent. Though in terms of the aforesaid judgment, the objections filed by an Objector would be maintainable before the Executing Court, but the maintainability of the objections cannot be treated as synonymous that such objections have to be decided by permitting the Objector to lead evidence. The question whether evidence is required to be led in support of the objections will depend upon the nature of the objections, the points of controversy and the issues, if any, arising out of the respective pleadings. Even if the issues are required to be framed, the question whether the Objector is entitled to seek stay of the execution of the decree pending adjudication of such objections are to be considered. The stay of execution of the decree can be granted only if there is prima facie case; balance of convenience and likelihood of irreparable loss or injury to be suffered by the Objector. The onus to prove these ingredients is heavy on the Objector in execution proceedings as the Civil Revision No. 5054 of 2010 -6- objections filed by the Objector infringes with the fruits of the decree granted in favour of the decree holder after the due adjudication of the process of law. In terms of the judgment of this Court in Satish Kumar case (supra), there is no necessity to frame issues in all cases where the objections have been filed by third party. This Court in 1996(2)Rent Controller Reporter 270 Som Parkash vs. Santosh Rani held that adjudication within the meaning of Order 21 Rule 97 of the Code of Civil Procedure does not mean that framing of the issues is always necessary for the Executing Court. If the pleas raised by the Objector in his objection petition have been considered by the Executing Court, it is a proper application of mind for which there should not be any grouse. In 1998(3) PLR 53 Rocky Tyres vs. Ajit Jain this Court held to the following effect: - It is settled principal of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceeding, even if prima facie they appear to be frivolous, vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court. In this court in Execution Second Appeal No.2333 of 1996, Bhagwan Singh and others vs. Parkash Chand, decided on 7.11.1996.The Court after detailed discussion and following the principles enunciated by the Hon'ble Supreme Court of India in the cases of Babu Lal v. Raj Kumar, J.T. (1996) 2 716, Munshi Ram and others v. Delhi Administration, A.I.R. 1968 Supreme Court 702, B. Gangadhar v. B.G. Rajalingam, A.I.R. 1996 S.C. 790, and noticing judgments of various High Court, held as under:- “Now, for considerable period it is not only the judicial trend which has declined to interfere to protect unlawful possession or possession of ranked trespasser etc. but, on the other hand, judicial anxiety has been to give effective relief to the successful Civil Revision No. 5054 of 2010 -7- parties by expeditious execution of decrees in favour of the parties. Unnecessary prolongation of litigation sometimes results even in frustrating the decree itself. Such attempt on the part of the objector to frustrate a decree is a mischief which has to be prevented by due process of law and expeditious decision of such ill-founded and frivolous objections would also be in the interest of justice and within the permissible field of jurisdiction of the execution”. “If frivolous objections of the present kind are permitted to unreasonably and un-necessarily prolong the delivery of possession to a decree-holder in accordance with law, it would certainly amount to putting a premium on abuse of process of law”. Thus the carnal principle of law that follows is that the purpose of granting an opportunity to prove his case to an objector while entertaining objections under Section 47 read with Order 21 Rules 97 to 108 of the Civil Procedure Code does not amount to permission for abusing the process of law or Court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law, but such a discretion cannot be termed as a mere routine exercise of judicial discretion. Either way it should be for well founded and settled principles governing the subject. In 2002(2) PLJ 78, Minakshi Saini vs. Gurcharan Singh Bharmra, this Court has held to the following effect: - “.........also in another case that need of framing of issues would depend upon the facts and circumstances of each case and it is not incumbent upon the Executing Court that it must put to trial every objection filed in execution proceedings may be frivolous, vexatious and delay causing objections can be summarily decided.” Later in, 2004(4)RCR(Civil)422 Bikram Singh vs. Surjit Singh and others this Court relied upon a judgment of this Court in Rocky Tyres's (supra) and held that the purpose of granting an opportunity to prove his case to an Objector does not amount to permission for misuse of Civil Revision No. 5054 of 2010 -8- the process of law of Court. It was held in as under: - “It is settled principle of law that it is not incumbent upon the executing court that it must put to trial all objections which are filed in any execution proceeding, even if prima facie they appear to be frivolous vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court.” Therefore, I am of the opinion that the facts of the present case do not warrant framing of issues and or stay of the execution of the decree against the interest of the decree holder. The question which may arise is whether the Objector is entitled to protect his possession which can be said to be in part performance of the agreement dated 9.10.1996. Such right would arise only if the Objector succeeds in proving delivery of possession in part performance of the agreement. But as per the facts on record, it is highly improbable to arrive at a conclusion even prima facie that the possession was delivered to the Objector in part performance of the agreement . It was not the case of the owner in the proceedings leading to decree for specific performance that there is an agreement in favour of the Objector and that possession was delivered to the Objector. The Objections have been filed soon after the decree was affirmed by this Court in Second Appeal. It is unbelievable that a vendor will deliver possession of the property on receipt of the 1/3rd of the sale consideration and that the prospective vendee will not take any steps for completion of his title within the period of limitation. Such conduct of the judgment-debtor is proof of the fact that the objections raised by the Objector are lacking bona fides. Civil Revision No. 5054 of 2010 -9- Consequently, the present revision petition stands allowed and the order passed by learned Executing Court is set aside. Executing Court shall cause to deliver the possession of the property to the petitioner forthwith subject to the right of the Objector in a suit for specific performance, if any, according to law. (HEMANT GUPTA) JUDGE 16.9.2010 preeti