ESA No.15 of 2009 1 In the Punjab and Haryana High Court at Chandigarh. Decided on April 30,2009 Subhash Chander and another -- Appellants vs Smt.Phoolwati and others -- Respondent. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Puneet Bali,Advocate,for the appellants Mr.Narender Hooda,Advocate,for the respondents Rakesh Kumar Jain,J: This appeal is directed against the order passed by the Additional Civil Judge (Senior Division), Tohana dated 2.12.2008 and the order dated 7.4.2009 passed by the Addl. District Judge, Fatehabad, dismissing the objections filed by the appellants under order 21 Rule 97 of the Code of Civil Procedure,1908 (in short,'the C.P.C.'). Brief facts culled out from the available record are that respondent Nos. 1 to 6 filed a Civil suit No. 495 dated 4.4.1995 against respondent No.8 for possession by way of specific performance of an ESA No.15 of 2009 2 agreement to sell dated 4.6.1991 in respect of agricultural land measuring 23 kanals 5 marlas comprised in Khasra No. 305// 16(7- 12), 17/1 (1-8),24 (8-0), 25/1 (5-1),23 min (1-4) situated at Tohana, Tehsil Tohana,District Fatehabad. Respondent No.8 did not contest the suit and was proceeded against ex-parte. The Civil Judge (Senior Division),Tohana, vide his judgment dated 5.2.2001, decreed the suit of respondent Nos.1 to 6 against respondent No.8 and directed him (respondent No.8) to execute the sale deed in favour of respondent Nos.1 to 6 in accordance with the terms and conditions of the agreement to sell and to hand over possession to them within three months from the date of the order. Respondent No.8 was also restrained from alienating the suit land to any other person. The appellants purchased the suit land to the extent of measuring 22 kanals 1 marla from respondent No.8 vide a sale deed bearing Vasika No.1887 dated 20.12.1993 for a consideration of Rs.1,80,000/-, and the remaining land vide sale deed No.2650 dated 14.12.2001,sale deed no. 2372 dated 22.11.2001 and sale deed No. 2462 dated 29.11.2001. On the basis of sale deed dated 20.12.1993, mutation No. 578 was sanctioned in the name of the appellants on 19.2.1994. It is alleged by the appellants that on 5.12.2003, ESA No.15 of 2009 3 respondent No.5 visited their land and threatened them to vacate the possession claiming title on the basis of sale deed No.2174 dated 18.9.2003 which was executed in terms of the judgment and decree dated 5.2. 2001. On verification from the record of Civil Suit No.495, the appellants came to know that respondent Nos.1 to6 have obtained an ex-parte judgment and decree dated 5.2.2001 on the basis of a suit filed by them on 4.4.1995, pursuant to an agreement to sell dated 4.6.1991, although respondent No.8 had already sold the property in dispute to the appellants prior to the filing of the suit on 20.12.1993. On the basis of the judgment and decree dated 5.2.2001, respondent Nos.1 to 6 filed an execution petition on 19.11.2002. As soon as the appellants came to know about the execution, they filed a civil suit against the respondents seeking a decree for declaration to the effect that the appellants are owners in possession of the land in dispute by virtue of sale deed in their favour and challenged the judgment and decree dated 5.2.2001 and sale deed No.2174 dated 18.9.2003 executed by Bharat Bhushan, Local Commissioner on behalf of Makhan Singh(respondent No.8) vide order dated 12.9.2003 passed in the execution proceedings claiming it to be illegal, based on fraud and concealment of facts and prayed for setting aside the sale deed with a consequential relief of permanent injunction restraining them from interfering in their possession and also from alienating the suit ESA No.15 of 2009 4 land in any manner. Similarly, the appellants also filed an application under Order 21 Rule 90 of CPC for setting aside the sale deed bearing Vasika No.2174 dated 18.9.2003. The plaint is dated12.12.2003 whereas the application under Order 21 Rule 90 of the CPC is dated 13.12.2003. While the suit was in process, application under Order 21 Rule 90 of the CPC was dismissed by Addl.Civil Judge (Senior Division), Tohana, vide order dated 16.10.2008 observing as under:- “Arguments heard. Learned counsel for the applicant has requested that sale deed bearing Vasika No.2174 dated 18.9.2003 be set aside and also his client be impleaded as party in the present execution petition. Learned counsel informed the Court that he has also filed a civil suit in this regard. When validity of above said document has been put to challenge by the petitioner in a civil suit, there is no requirement of impleading him as party in the present execution petition. Even otherwise in an execution petition above said sale deed cannot be set aside. The petitioner has already sought the proper remedy by way of filing a civil suit. Resultantly, application dated 13.12.2003 filed under order 21 Rule 90 for setting aside the sale deed bearing Vasika No.2174 dated 18.9.2003 after ESA No.15 of 2009 5 impleading the applicants as necessary party in the said proceedings. Now warrant of possession be issued for 29.11.2008 on filing of necessary documents and expenses within three days positively”. The appellants challenged the aforesaid order by way of Civil Revision No. 6232 of 2008 (O&M) in which the following order was passed on 12.11.2008:- “Learned counsel for the petitioners wishes to withdraw this revision petition in order to file objections under Order 21 Rule 97 C.P.C to the execution application filed by the decree holder, being third party. The learned counsel for the petitioners further states that he would pray for interim relief in accordance with law in the said application. Dismissed as withdrawn with liberty as prayed for. Copy of the order be given under signatures of Court Secretary”. Since liberty was granted by this Court on the request of learned counsel for the appellants for filing objections under Order 21 Rule 97 of the C.P.C.,the same were filed in November, 2008. These objections were dismissed by the executing Court vide order dated 2.12.2008. The appellants then challenged the said order dated ESA No.15 of 2009 6 2.12.2008 by way of Civil Revision No. 6791 of 2008 before this Court, which was disposed of on 9.12.2008 with the following orders:- “The petitioners challenge the order dated 2.12.2008 (Annexure P-16) passed by the executing Court dismissing an application filed under Order 21 Rule 97 of the Code of Civil Procedure, 1908. An order passed under Order 21 Rule 103, is deemed to be a decree and is consequently appealable. As a result, the revision petition filed by the petitioners under Article 227 of the Constitution is not maintainable. The petitioners are therefore, relegated to their remedy of filing an appeal before the appellate Court. Revision petition stands disposed of accordingly. Copy of this order be given dasti to the counsel for the petitioners under the signatures of the Special Secretary of this Court”. Thereafter, the appellants filed an appeal before the learned lower Appellate Court which has been dismissed by the impugned order dated 07.4.2009 on the ground that the appellants had earlier filed similar objections under Order 21 Rule 90 of the CPC, which were dismissed on 16.10.2008. Therefore, the present objections filed under order 21 Rule 97 of the CPC, which are para-materia with ESA No.15 of 2009 7 the objections filed earlier, falls within the definition of 'res-judicata' . It was also observed that though mere filing of suit is no ground to dismiss the objections but since no one can be vexed twice, therefore, filing of present objections and a separate suit on the same ground is illegal. The appellants represented by Mr.Puneet Bali, has challenged both the findings of the learned Courts below whereby objection have been dismissed on the ground of res-judicata as well as on the ground of maintainability in the presence of the suit filed on the same cause of action. Before adverting to the arguments raised by the learned counsel for the appellants, some provisions of the C.P.C. need to be noticed. Order 21 Rule 90. Application to set aside sale on ground of irregularity or fraud–(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a ratable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it; 2. No sale shall be set aside on the ground of irregularity ESA No.15 of 2009 8 or fraud in publishing or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. 3. No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. Explanation-- The mere absence of, or defect in attachment of the property sold shall not , by itself, be a ground for setting aside a sale under this rule”. Order 21 Rule 97 Resistance or obstruction to possession of immovable property:- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Order 21 Rule 101 Question to be determined- All ESA No.15 of 2009 9 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 purpose, 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”. Opening his first arguments in respect of maintainability of the objections filed under Order 21 Rule 97 of the CPC during the pendency of the Civil Suit on the same cause of action, learned counsel for the appellants has submitted that this question has already been determined by the Supreme Court in the case of TANZEEM-E-SUFIA Vs BIBI HALIMAN AND OTHERS (2002) 7 Supreme Court Cases 50. He further contended that since the appellants are claiming right over the property in dispute and are asserting their possession, all the questions relating to right, title or interest in the property in question have to be decided under Order 21 Rule 101 of the CPC and not by a separate suit and their objections cannot be rejected on the ground that the appellants had ESA No.15 of 2009 10 also filed a suit for declaration of their title challenging the ex-parte decree in favour of respondent Nos. 1 to 6. Learned counsel for the appellants has further contended that the dismissal of their objections on the ground of res-judicata is contrary to the law because in the earlier order passed on the application filed under Order 21 Rule 90 of the CPC, nothing has been observed on merit to determine the right, title or interest of the appellants over the property in dispute. The objections were dismissed only on the ground that the appellants have chosen an alternative remedy of filing a suit, therefore, it was observed by the Court in the order dated 16.10.2008 that the appellants are not required to be impleaded in the execution proceedings. Learned counsel for the appellants has also referred to the provisions of Section 11 of the CPC which are reproduced below:- “Res-judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. ESA No.15 of 2009 11 Explanation I- The expression” former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II- For the purpose of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly by the other. Explanation IV- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V- Any relief claimed in the plaint, which is not expressly granted by the decree, shall , for the purposes of this section, be deemed to have been refused. Explanation VI-Where persons litigate bona-fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. ESA No.15 of 2009 12 Explanation VII-The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit shall be construed as references respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Learned counsel has further submitted that the learned Courts below have committed an error of law while not framing appropriate issues while dismissing the objections observing that the objections filed by the appellants are frivolous having been filed with an ulterior motive to avoid execution of lawful decree. It is also submitted that an agreement to sell was executed by respondent No.8 in favour of respondent Nos. 1 to 6 on 4.6.1991 which was required to be executed by 4.4.1992, but respondent No.8 sold the property in dispute to the appellants on 20.12.1993 and the suit has been filed ESA No.15 of 2009 13 by respondent Nos. 1 to 6 on 4.4.1995, in which respondent No.8 did not participate and suffered an ex-parte decree in favour of respondent Nos. 1 to 6 knowing fully well that he had no sale-able right at that time as the property had already been sold by him to the appellants. It is also contended that this is a question which was required to be gone into by the executing Court while deciding objections under Order 21 Rule 97 of the CPC as a suit, therefore, the executing Court should have framed the relevant issues as to whether there was collusion between the Decree Holders and the judgment debtor and whether it is a case of fraud having been played by them upon the objector to scuttle the sale deed executed by the judgment debtor in favour of the appellants. In reply, Mr.Narender Hooda, learned counsel for the Decree Holders/ respondent Nos. 1 to 6 has vehemently argued that the appellants cannot choose two remedies under the law. The appellant could choose one remedy at a time in view of Doctrine of Election. In this regard, he has relied upon a decision of the Supreme Court in the case of PRASANTA BANERJI VS. PUSHPA ASHOKE CHANDANI AND OTHERS (2002) 9 Supreme Court Cases 554. The learned counsel further submitted that mentioning in the head note, the provisions of law in the plaint/petition are not the guiding factors to come to the conclusion about the pleadings and the relief ESA No.15 of 2009 14 which has been sought. It is submitted that earlier the appellants filed objections under Order 21 Rule 90 of the CPC and in the subsequent application filed under Order 21 Rule 97 of the CPC, same pleas have been taken by the appellants that by virtue of sale deed in his favour, he has become owner before filing of the suit and the decree passed therein was collusive. It is further submitted that since earlier objections were dismissed by the Court which have not been successfully challenged by the appellants, second objection on the same cause of action was not maintainable and was hit by the 'Principle of Res-judicata' . In respect of third argument, it is submitted that if the objections which have been filed by the appellants are per-se frivolous and vexatious, the executing Court is not bound to frame the issues. I have heard the learned counsel for the parties and have thoughtfully considered their rival contentions. Few facts, which have not been disputed, are required to be noticed. Respondent Nos.1 to 6 entered into an agreement to sell with respondent No.8 on 4.6.1991 which was to be honoured by 4.4.1992. Respondent No.8 executed the sale deed in favour of the appellants of the land in dispute on 20.12.1993 and till then, no suit ESA No.15 of 2009 15 in respect of an agreement to sell was filed by respondent Nos. 1 to 6. It was filed on 4.4.1995 in which respondent No.8 did not appear and an ex-parte decree was passed. The appellants being in possession challenged the decree dated 4.4.1995 on the ground of fraud and collusion and similarly filed objections under Order 21 Rule 90 of the CPC. The objections have been dismissed only on the ground that the appellants have already availed of alternative remedy of civil suit, therefore, parallel proceedings in the execution were not allowed. Revision against the said order was withdrawn by the appellants but liberty was granted by this Court to them to file fresh objections under Order 21 Rule 97 of the CPC. No decision on merit was taken on the objections filed under Order 21 Rule 90 of the CPC. Objections filed under Order 21 Rule 97 of the CPC were filed which have been dismissed on the ground of res-judicata and alternative suit pending challenging the decree dated 4.4.1995. In answer to the first question that during the pendency of the Civil Suit, objections under Order 21 Rule 97 of the CPC are also maintainable, learned counsel for the appellants has relied upon a decision of the Supreme court in the case of TANZEEM-E-SUFIA (SUPRA). In this case, question involved was that:- “Issue notice limited to the question as to why the petitioner should not be allowed to pursue at least one of ESA No.15 of 2009 16 the two remedies either to proceed with application under Order 21 Rule 97 CPC or with civil suit”. In this case, the Supreme Court observed as under:- “We find that in the case in hand the appellant is claiming its independent right over the property and asserts its possession thereof. Order 21 Rule 101 clearly provides that all questions relating to right, title or interest in property relevant to the adjudication of the application, shall be dealt with the application and not by a separate suit. The High Court,therefore, erred in refusing to hear the appellant, on the ground that it has already filed a suit for declaration of its title and for declaration that the decree passed in Title Suit No.8 of 1983 is not binding on it. The provisions contained under Order 21 Rule 101 CPC seems to have escaped the notice of the High Court while passing the order. We would also like to observe that the reasoning given by the executing court while rejecting the application of the appellant as indicated in the order of the High Court, that the remedy of the appellant would only lie by moving an application under Order 21 Rule 99 CPC is also erroneous as in the case of Brahmdeo Chaudhary it has been held that it should not ESA No.15 of 2009 17 be insisted that possession be delivered first and the objector may later on move the Court under Order 21 Rule 99 CPC”. Since it has been held that the objector cannot be refused to be heard on the ground that he has availed the remedy of declaration suit in respect of his title if he has filed objections under Order 21 Rule 97 of the CPC, the finding recorded by the Courts below in this regard is hereby repelled. Insofar as the point of res-judicata is concerned, I am in agreement with the arguments raised by the learned counsel for the appellants that vide order passed on the application under Order 21 Rule 90 of the CPC on 16.10.2008, no finding has been recorded on merit as to whether the appellants had a right in the suit property or not. Objections have been dismissed only on the ground that the appellants had already filed a civil suit, therefore, he cannot be impleaded as a party in the execution application. This finding, to my mind recorded in the order dated 16.10.2008 does not constitute res- judicata insofar as the question of title is concerned. In respect of third submission that the learned Courts below have erred in not framing the relevant issues in order to give an opportunity to the parties to prove their case by leading cogent evidence on the ground that the objections are frivolous because the ESA No.15 of 2009 18 question involved in this case is as to whether at the time when the suit was filed by the Decree Holders/respondent Nos.1to 6 against the judgment debtor-respondent No.8, no right or title was left with him so as to suffer a decree in their favour as the property had already been sold by respondent No.8 to the appellants vide sale deed dated 20.12.1993. Thus, whether there is a fraud or collusion between Decree Holder or Judgment Debtor who did not contest the suit, is a question of fact which could be proved if on the basis of pleading of the parties, appropriate issues are framed and opportunity is granted to the appellants to lead their evidence because the objections filed under Order 21 Rule 97 of the CPC have to be decided as a suit. Under Order 21 Rule 101 of the CPC, the executing Court is required to afford an opportunity to the parties to lead evidence and that fact could only be decided after relevant issues are framed. Thus, in my view, the learned Courts below have erred in not framing the issues to decide the aforesaid question of fact. In view of my above discussion, I find merit in the present appeal and the same is hereby allowed. The impugned orders of both the Courts below are set aside and the matter is remitted back to the executing Court to decide afresh after framing relevant issues arising out of the pleadings of the parties and affording an opportunity to them to lead their evidence. ESA No.15 of 2009 19 The parties in person or through their counsel are directed to appear before the Court below on May 18,2009. However, in the peculiar facts and circumstances of the case, the parties shall bear their own costs. April 30,2009 (Rakesh Kumar Jain)