ESA No. 22 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ESA No. 22 of 2011 (O&M) Date of decision : 5.9.2011 ... Gurminder Singh and another ................Appellants vs. Harjinder Kaur .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Harsh Aggarwal, Advocate for the appellants. ... K.C. Puri, J. This is an Execution Second Appeal directed by objector- appellants against the judgment dated 4.8.2011 passed by Ms. Navjot Sohal, Additional Sessions Judge, Patiala, vide which the appeal preferred by the appellants against the order dated 28.2.2011 passed by Mrs. Poonam Bansal, Civil Judge, Junior Division, Rajpura, was dismissed. Briefly stated the facts of the case are that Harjinder Kaur filed civil suit No. 203 dated 3.4.1975 against Jagjit Singh and Harvinder Singh for possession of land measuring 101 Bighas 19 Biswas, on the ground that on account of decree passed in civil suit No. 227/A dated 6.4.1972 decided on 10.4.1972, the plaintiff is the exclusive owner of the suit property and she has been dispossessed ESA No. 22 of 2011 -2- illegally. After adjudication, the suit was decreed by Sh. J.R. Singla, PCS, Subordinate Judge III Class, Rajpura, vide judgment dated 18.9.1978. The defendants filed appeal, which appeal was accepted by the Ist Appellate Court and it was held that plaintiff could not inherit the property from Dalip Kaur as she was a limited owner under compromise Exhibit P-1. Harjinder Kaur preferred regular second appeal and vide judgment and decree dated 12.12.2003, passed by this Court in RSA No. 1105 of 1980, the appeal was accepted. Execution of that judgment and decree was being sought by Harjinder Kaur. The present appellants – Gurminder Singh and Mukhtiar Singh preferred objection petition in the said execution proceedings with the allegation that they have purchased 50 bighas 15 biswas of land through sale deed dated 11.1.2005 from one Prem Singh s/o Punnu s/o Gujjar Singh, Kulbir Singh, Kuldeep Singh, Bhupinder Singh sons of Prem Singh s/o Pannu and Mandeep Kaur d/o Jatinder Singh and Jatinder Singh s/o Gurnam Singh s/o Punnu. The objectors are owners in possession of the suit property. The sellers have never told the objector-petitioners about the decree dated 10.4.1972. The objectors are living in village Himmatgarh Dhakoli and as such above said judgment is not binding upon them. The objectors should be heard before passing any order in the execution. The execution is liable to be dismissed. In reply, the decree holder had taken preliminary objections that objection petition filed by the objectors are barred by time as they have full knowledge about the pendency of the present execution petition. Previously, objectors filed suit for permanent injunction ESA No. 22 of 2011 -3- titled as 'Mukhtiar Singh and others vs. Harjinder Kaur' bearing No. 491 dated 13.8.2005, which was decided on 21.8.2006 regarding the suit property. The decree holder appeared in that suit and contested the same by filing written statement and ultimately, the suit was dismissed as withdrawn. In the written statement, as well as, statement suffered by Barjinder Singh, Special Power of Attorney of decree holder dated 21.8.2006, it was specifically mentioned that the present execution petition was pending at the time of filing of that suit. The present objections have been filed by the objectors after 1-1/2 year from the decision of that suit. On merits, it is pleaded that suit of the plaintiff for possession on the basis of judgment dated 10.4.1972 was decreed by the Sub Judge, IIIrd Class Rajpura, vide judgment dated 18.9.1978. The judgment debtors preferred appeal bearing No. 685-T of 17.10.1978, which was accepted vide judgment and decree dated 17.1.1980. The decree holder filed RSA No. 1105 of 1980 before this Court, which was accepted vide judgment dated 12.12.2003. The other averments made in the petition were denied. It is pleaded that objection petition has been filed at the instance of judgment debtor. He has no locus standi. Learned trial Court after hearing both the sides, dismissed the objections observing that the sale by plaintiff is hit by principle of lis pendence vide order dated 28.2.2011. Feeling dissatisfied with the said order, the objectors filed civil revision No. 2023 of 2011 and that revision petition was dismissed as withdrawn vide order dated 23.3.2011. Thereafter, the appellants filed Ist Appeal against the order dated 28.2.2011 passed ESA No. 22 of 2011 -4- by Mrs. Poonam Bansal, Civil Judge, Junior Division, Rajpura and that appeal was dismissed vide judgment dated 4.8.2011 passed by Ms. Navjot Sohal, Additional Sessions Judge, Patiala. Still feeling dissatisfied with the judgment dated 4.8.2011 passed by Ms. Navjot Sohal, Additional Sessions Judge, Patiala and judgment dated 28.2.2011 passed by Mrs. Poonam Bansal, Civil Judge, Junior Division, Rajpura, the present Execution Second Appeal has been preferred by the objectors. Learned counsel for the objectors has submitted that a request was made before the learned trial court to frame proper issue arising out of the pleading of parties. The appellants have been non- suited on the ground of principle of lis pendence. According to Section 52 of the Transfer of Property Act, the principle of lis pendence is not applicable if the decree is collusive. The decree in favour of the plaintiff dated 10.4.1972 is collusive and as such in view of authorities reported as Shreenath vs. Rajesh 1998 (1) RCR (Rent) 454 and Shakuntla Devi vs. Kamla and others 2005 (4) JT 315, the objection petition of the appellants has been wrongly declined. The Courts below should have framed the proper issue arising out of the pleadings of the parties and thereafter the objections should have been decided. It is further submitted that name of the decree holder does not appear in the revenue record. So, in these circumstances, the appellants are bona fide purchasers for valuable consideration and principle of lis pendence will not apply. To support this contention, he has relied upon the authority reported as Ram Avadh and others ESA No. 22 of 2011 -5- vs. Ram Das and others 2008 (8) SCC 58. I have carefully considered the said submission, but do not find any force in that submission. The stand taken by the objectors is that the decree dated 10.4.1972 is collusive. However, the fact remains that the appellants cannot get better title than the original owner. From the perusal of the judgment dated 18.9.1978, vide which the suit of the plaintiff for possession on the basis of decree dated 10.4.1972 was decreed, it is revealed that issue No. 1B. was framed – whether decree dated 10.4.1972 was obtained by fraud? The said issue was decided in favour of the plaintiff Harjinder Kaur and against Jagjit Singh and Harvinder Singh – defendants. That judgment has been restored by this Court in regular second appeal No. 1105 of 1980 decided on 12.12.2003. So, the validity of decree dated 10.4.1972 has already been tested between the decree holder and judgment debtors. The objectors claim their right on the basis of sale deed executed by judgment debtors in favour of Prem Singh and Prem Singh in favour of the appellants. So, that finding is binding upon the objectors. The sale deed in favour of the appellants is after the judgment dated 12.12.2003 passed by this Court in favour of decree holder. So, in these circumstances, the Courts below have rightly held that sale deed of the objectors is hit by the principle of lis pendence. One another circumstance, which militates the case of the objectors is that the trial Court decided the objection petition by three set of objections, including that of Surjit Kaur, who claimed themselves to be bona fide purchasers. The Ist Appellate Court in ESA No. 22 of 2011 -6- paragraph No. 10 of its judgment has observed that objections preferred by Surjit Kaur have been dismissed by the High Court in a revision petition vide order dated 5.4.2011. It has been rightly observed that the matter has already been decided regarding bona fide purchasers by the High Court, vide order dated 5.4.2011. Learned Ist Appellate Court has taken into account Order 21 Rule 102 CPC and it has been rightly observed by the Ist Appellate Court that transfer in favour of appellants is hit by the principle of lis pendence. It is not disputed by the appellants that sale in their favour is even after the decree passed by the High Court, which is being executed. So, the principle of lis pendence is applicable. So far as authority in Shreenath's case (Supra), is concerned, that authority is distinguishable as in that case, the objectors claimed himself to be the tenant and under those circumstances, the Hon'ble Apex Court has held that in case he resists, his objection can be determined keeping in view Order 21 Rule 101 CPC and Order 21 Rule 97 CPC. So far as authority in Shakuntla Devi's case (Supra), is concerned, that case is distinguishable, as in that case there was no dispute that earlier decree was found valid by the Civil Court. At the cost of repetition it is mentioned here that the declaratory decree dated 10.4.1972 has been tested between the judgment debtors and decree holder and that was found valid. The objectors claiming right on the basis of sale deed by Prem Singh cannot be re-agitate the matter again. So, far as authority in Ram Avadh 's case (Supra), is concerned, that authority is remotely connected to the facts of the ESA No. 22 of 2011 -7- present case. In that case, the suit property was recorded in the joint name of two brothers, who were predecessor of parties and such entry continued up to 11 years and name of the appellant's vendor croped after the death of appellant's predecessor. So, the facts of that case are distinguishable to the facts of the present case. If the objections are frivolous and vexatious, in that case there is no need to frame the issue. In view of the above discussion, the present Execution Second Appeal is without any merit and the same stands dismissed. A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 5.9.2011 Judge chugh