81 44 1 ESA No 1 of 2009 f 1 IN THE HIGH COURT OF PUNJAB 8 HANA AT CHANDIGARH ESAN0 1 of 2009 Decided on 82011 Jit Singhand another Appellants 0 0 I C5 Versus I Z Smt Usha Rani te others r I CORAMHONBLE MR JUSTICE KC PURI Z 7 Present Mr Khungar Advocate for theappellants Z Mr BSBhalla Advocate for Nol tl KCPURI Je This is execution second appealagainstthe order dated 8102007 by leamed Additional District Judge Mogavide which theappealpreferredby the present againstthe orderdated 6005 passedby Civil Judge0uniorDivisionl Moga objections was dismissed 2 The brief facts of the presentcaseare that objectorpreferred Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 82 t 2 ESANo l of 2009 17 l objection in the executionpetition on the ground that he has been the purchaser of the housein question in a PublicaUCtiOneTh Sal ofthe said househasbeendulyissuedin his favour on 2582000 Thereafler the has become owner in of the suit Now the said propertycannot be attachedor auctionedand a m 0 hasbeen madefor accepting theobjection petition 0 3 On notice the decree holder filed amendedreply to the 0 I petitiontaking the objectionsregardingthe C5 of the objectionpetitionlocus standi of the objector I petitionbeingprnaturedand the have been filed by Z theapplicant to delaythe matter Thesale or court auction is hit bythe rule 2 C oflispendens It has also been allegedthat theallegedauction ofthe house wasthsole propertyofUsha Rani JagdishParshadhasno saleableinterest L2 Z in the housesold execution ofthe decree On merits the averments have lIl 00 been denied anda prayer for dismissalof the objectionpetitionhas been 7 made Z Il 4 From the of the partiesfollowing issues were framed 1 Whether has been declared purchaser of thehouse in questionin Public Auction2 If so its effect2 OP Objector 2 Whetherobjectionpetition is not maintainable2OPDH 3 Whether objector has got no locus standito file the present OPDH 4 Whetherpresentobjections are prematureand does ot lie2 Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 83 4 3 ESANo l of 2009 0 1 OPDH 5 Relief On 1232003 issueswere framed 1 Al Whetherthe Court auction of the propertyin dispute 1S hitbythe rule oflis pendens ifso its effect2OPDH C 2 Relief 0 5 In order to prove his case the objectorexaminedOWl Gurdev 0 Ballifand tenderedcertaindocumentsandclosed the evidence C5 6 On the other handKarnail SinghexaminedDHW l Chanan I as DHH2 and closed theevidenceaftertendering certain documents Z 7 The learned trial Court afterhearingboth the sides remmed findingson issue Nol and lA in favour ofthe objector whereasremaining I lssues were decidedagainstthe decree41oldersand accepted the objection Z ofthe objector vide order dated692005 r 8 dissatisfled with the above said order dated 62005 mr3 the First Appeal The same was the Z by learned Additional District Judge Moga vide heard and dated 8102007 Therefore the presentexecution secondappeal hasbeen 9 The submitted that the followingsubstantial oflaw havearisenin thepresentappeal i9 Whetherthe orderspassedby both the courts below are and thereforeliable to be set aside 9 iil Whether the orders by both the courts below is the result ofthe misreading ofthe documentson the file because the ADJ Moga has held that dcreedated71 11998 was passedagainstJagdish Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 84 K ESA No 1 of 2009 4 0 Parshad 8eUsha Rani thereforethe said decree couldbe executedeither againstJagdishParshad or UshaRani whereasthe decree dated711998 was only againstJagdishParshad the housebelonging to Usha Rani could nothavebeenputto auction 2 Iiil Whether agreement to mortgagedated 193 993 andthe decreedated711998 are the result ofthe collusion No 1 and 2 justwith C view to avoid the agreement datedlOA1997 and a thedecree dated 69 1999 wherebythe suit for 0 specific W8S decreedln favourof the 0 I C5 ivl Whether the house belonging to Nol couldbe put to auction to satis8the decreeagainst I thehusband No5 Z v Whether Parshadhad any saleableinterest in the housein question7 10 I haveheard leamed counsel for the parties and have gone I through the recordsofthe case Z while issuingnotice of motion on 24A2009 11 This Court f observedas under l W2 Present Mr KhungarAdvocate for the CL Learned counselfor the appellants inter alia contends that defendanJsha Rani was the owner ofthe property ln disputewhich she agreedto sell to the vide agreementdated 10A 1997 Since she didnot performher partof the agreementtherefore the had flled suit N0524 on 221 11997 for which was decreed on dayof e 1999 in which defendant2UshaRani was Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document c7 85 4 ESAN0 1 of 2009 5 0 1 to execute the sale deedin favour ofthe plaintiff onreceivingthe sale considerationas per the terms and conditionsof agreement to sell within two monthsfrom thatdate It is ther contendedthat both the Courts have the decreewhich came to be passedin the 1 suitfiled byBalwant Kumar againstJagdishParshadand 0 UshaRani on 7 1998 because in the said decree 0 I relief of specific was not granted rather it C5 was orderedthat defendant No leJagdishParshad has I failed to his part of the contract therefore Z Balwant Singhetc are held entitled to recover 2 C4 Rs800001 as earnestmoney om No l I Parshad alone He further submitsthat there is Z no decree passedlll Civil Suit N0207 of 243 997 m Usha Rani Thus the orderspassed 7 byboth the Courtsbelow are erroneous on the facts Z Noticeofinotion for 183009 In the meantime alienation of the propertyin dispute remainstayed 12 Leamed counsel for the has submittedthat the filed Civil Suit N0524 on 22111997 for speci8c ofcontract againstSmtlJsha Rani the owner ofthe property whichwas decided on 681999 That suit was decreedagainstSmtlJsha Rani the owner of the property The said judgment and decree have not been by SmtlJsha Rani before any Court Balwant Kaurand 1 Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 86 d4 ESA No l of 2009 6 0 1 Kumar have filed suit No207 dated 245 997 againstJagdish Parshadand UshaRani The claim in the said suit was in respectof dated 1931993 executedby JagdishParshadln agreement to favourof Balwant Kaur RajivKumar AjayKumar and AnjaliRani in ofthe housein The leamed Civil JudgeoTuniorDivision9 a Mogavide dated 71 11998 decreed the suit for recovery of 0 againstdefendantJagdishParshad whereas the relief for 0 I specific to mortgagewas declined SmtlJshaRani was the C5 exclusive owner of the houseandshe has the same throughsale I deed dated2981989 from DarshanKaur for a considerationofRsl50001 Z 13 The case of the is that theyhave the house Q 111open auction and theyhave been declaredpurchaser of the house sale I of the said house in favour of the applicant has been issued on Z 2582000 The have filed replyto the objectiontakingthe C objection of locusestandiobjectionbeingpre 7 were taken It is submittedthat saleofthe Coun is hit byRule oflis Z Oa pendensIt has been allegedthat allegedauctionof the house was the propertyof Usha Rani JagdishParshadhas no saleableinterestin thehousein under decreee 14 The learnedcounsel for the has submittedthat have the propertyin execution of the decree dated 7 11998 The said decree was againstJagdish Parshad son ofBhanwar Lal of SmtlJsha Rani and no decreeagainstUsha Rani for recovery waspassedThe agreementto mortgagewas executedin favour ofBalwant SinghRajivKumar etc by JagdishParshad alone and Usha Rani was not Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 87 4V ESA No l of 2009 7 0 to the said mortgagedeed Otherwisealso JagdishParshad was not the owner of the propertyand as such the propertyexclusi elyownedbyUsha Rani cannot be put to auctiOOe Thispointwas raised beforethe executingcourt as well as First Court but both of them have shut theireyes regarding the pointthat JagdishParshadis not the 1 C ownerof the propertyand as such sale certi6cate in favour of the objectors 0 doesnot affect therightsofthe decree4lolderregarding housein questlon 0 I 15 It is further contendedthat in fact the objectors have colluded C49 I with Usha Rani and Parshad and got the propertysold in their favourduringthependency ofthe presentexecutionpetition Z 16 Inreplyto the abovenotedsubmissionsleamedcounsel for the had submittedthat theyare bona fide for I valuable consideration Sale certificatehas been issuedin their name The Z triedto get the sale certificate set aside from the has never court There is concurrent flndingof fact recorded by both the e2 Courts below So no interferencecan be madein thepresentappeal Z Ll 17 I havegiven my considerationto the rival submissionsmadebyboth the sides and have gone throughthe recordsof thecase 18 The got the sale certificate lll their favour on 2582000 he agreement to sell byUsha Rani was executedin favour of thepresentdecree41olderon 10A997 The suit for specific of agreementwas decreed on 61999 and the presentexecution petition filedon 20111999 So the sale certificate in favour of objector 1S was e aflerthe filing of execution in favour of presentdecreeeholderand as such VS Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 88 d ESAN0 1 of 2009 8 thesame is hit bytheprinciples oflis pendens 19 One anothercircumstance which militatesthe case againstthe is that the decree in which propertyin disputehas been put to auction waspassedagainstJagdishParshadalone and no decreeofrecovery was againstUsha Rani From the perusal of Annexure 12 the i and decreedated71 11998 it is revealedthat althoughplaintiffs 0 in that case haveclaimed the decreeof speciSc of mortgage 0 deeddated 1931993 butthe onlyrelief granted to the decreeholder was in C respectof recovery of Rs800001 alongwith interest againstJagdish I Parshadalone There was no decreeagainstUsha Rani The decree4lolder Z 111theobjectionpetitionhave taken specificstandthat Usha Rani was the 2 0 owner and JagdishParshad was not the owner and as such the propertyof I Usha Rani cannot be put to auctlolle However the executing Court has Z illegally observed that decree was passedagainst JagdishParshad and m Usha Rani both The trial Court has not even put a cursory view on the 7 decreedated 71 1 1998in which the propertyhasbeen put to sale in favour Z ofthe objectors wasagainstdefendantNol alone and there Il wasno decreefor recovery against Usha Rani The decreelolder in a loud voice again raisedgrievance before the First Appellate Court to the effect that propertyof Usha Rani cannot be putto auction as there was no decree againsther but the First AppellateCourt also observed that decree was againstJagdishParshad and Usha Rani which fact is againstthe record So both the Courts below have shut their eyes and Ondingof both theCourts below that Usha Rani was also thejudgmentdebtor in judgment and decree dated 71 11998 in which the objectors have the Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 89 ESANo l of 2009 9 propertyln Courtauction and isagainstthe record The decreeholder has placed on record the saledeed dated2981989 which is exclusively in the nameof Usha Rani andJagdishParshadher husbandhas no concernwith the property 20 So theargumentadvancedby the counsel for the decreee thatobjectors in connivancewith Jagdish debtors 0 and decree dated711998 and Usha Rani has got the 111 0 I certificateof sale duringthe of the presentpetition in order to C5 defeat therightsof thepresentdecree41older assumes imponance I 21 Usha Rani is exclusive owner of the propertyas per sale deed Z dated29989 and JagdishParshad has no rightinthe property So lIl thepropertyof Usha Rani cannot be put to auctioIl these circumstances recovery ofamount from JagdishParshad The orderspassedby C Z theCourts below are perversein as much as the Courts below have not both CO triedto find out that there is no decreeagainstUsha Rani and that even W UshaRani alone The sale certificate in favour of belongsto Z does not confer any legalrightin respectof propenyownedby Il Ushra Rani which decree for specific has been eW in favour ofpresent 22 So ln view of the above discussion the substantialquestions of law raised above stand answeredin favour of the and the executionsecond standsaccepted and the orderspassed by both the Courtsbelow stand set aside and the objections prefened bythe objectors standsdismissedwith costs The executionpetitionbe restored at lts number and rther be conductedby the Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document 90 dpl ESA No l of 2009 10 Court in accordancewith law 23 A copy of this judgfnent be sent to the trial Court for strict 1 JUDGE 08 2011 SV 0 0 I C5 I Z Z I C Z 00 S7 Z r406 Il 10 Singh Gagan Preet 2012.11.08 14: 41 True Scanned Copy Of The Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:30 I attest to the accuracy and integrity of this document