1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Tarsem Chand. vs. Praveen Kumar and others. S.B.CIVIL FIRST APPEAL NO.177/2006 UNDER SECTION 96 CPC AGAINST THE JUDGMENT AND DECREE DATED 28.2.2006 PASSED BY SHRI JANARDHAN VYAS, SPECIAL JUDGE, NDPS CASES COURT, SRI GANGANAGAR IN CIVIL MISC. APPLICATION NO.4/2006. DATE OF JUDGMENT ::: 17.1.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.Pradeep Shah, for the appellant. Mr.HK Jain, for the respondents no.1 to 5. Mr.VK Bhadu, for the respondent no.6. - - - - - BY THE COURT: Heard learned counsel for the parties. This execution first appeal is against the order of the executing court dated 28.2.2006 by which the 2 executing court dismissed the appellant's two applications – one filed under Section 47 CPC and another filed under Order 21 Rule 97 & 99 CPC. Brief facts of the case are that the plaintiff Padma Rani filed a suit no.67/2004 for eviction against respondent no.6 Chandra Prakash with the contention that the suit property was purchased by her by registered sale deed in the year 1981. She described the property in para no.1 of the plaint. The said property was taken on rent by defendant/respondent no.6 Chandra Prakash in the year 1990 on rent at the rate of Rs.8000/- per month. According to plaintiff Padma Rani, defendant Chandra Prakash paid the rent upto 31.3.1993 and thereafter, he did not pay the rent and thereby the defendant committed default in payment of rent. The plaintiff also sought decree for eviction of said defendant/tenant on the grounds of personal bonafide necessity, change of user etc. Plaintiff's suit was decreed by the trial court on 1.2.2005. In the said suit, defendant Chandra Prakash produced his brother Tarsem Singh (present appellant) as his witness who admitted that Chandra Prakash is in occupation of the suit properyt. Against the judgment and decree of the trial court dated 1.2.2005, regular first appeal no.91/2005 was preferred by Chandra Prakash which was dismissed by 3 this Court vide order dated 27.4.2005. However, at the request of learned counsel for the defendant Chandra Prakash, time for vacating the suit premises was extended for a period of 6 months from the date of order i.e. 27.4.2005. Against the order of this Court dated 27.4.2005 dismissing the first appeal of Chandra Prakash, SLP was preferred by Chandra Prakash which was dismissed by the Hon'ble Apex Court on 18.11.2005 for non-prosecution of the appeal. A restoration application was submitted which was allowed vide order dated 30.1.2006 and thereafter, the said SLP was dismissed on merits by the Hon'ble Apex Court by the same order dated 30.1.2006. It appears from the order of the Hon'ble Apex Court dated 30.1.2006 that at that stage also, defendant Chandra Prakash sought extension of time but the Hon'ble Apex Court observed that for that purpose, he may approach High Court. After dismissal of SLP and attaining finality of eviction decree obtained by Padma Rani on 1.2.2005, only 10 days after, Tarsem Singh, Chandra Prakash's brother, submitted the aforesaid two applications before the executing court. It may be worthwhile to mention here that the judgment debtor, Chandra Prakash, also submitted undertaking before the trial court that he will hand over vacant possession of the suit property to the decree holder to obtain the benefit of the order of 4 this Court dated 27.4.2005. Not only above, but Chandra Prakash before the executing court submitted several applications for getting more time and thereafter, the present appellant has preferred these two applications, referred above. In the application, appellant/objector Tarsem Singh submitted that it is true that the suit property was purchased by Padma Rani by registered sale deed but this property was purchased benami and in fact, it was never let out to Chandra Prakash. It is also submitted that the objector is in possession of the suit property. The objector further stated that he is in occupation of the suit property in his own right and, therefore, is not bound by the decree passed against Chandra Prakash. It is also alleged that to avoid income tax and property tax, some collusive suits were filed by Padma Rani and Chandra Prakash and in that sequence only, the present suit was filed by Padma Rani against Chandra Prakash and, therefore, also, the decree holder/plaintiff cannot take possession of the property in dispute from the possession of the objector. It is also alleged that after obtaining the police help, the possession of part of the property was taken and while doing so, some goods of the objector were also removed, therefore, the objector is entitled to take back possession of the property, possession of which was taken by Padma Rani/his heirs in execution of 5 decree against Chandra Prakash. In sum and substance, according to the objector, he was not party in suit no.67/2004 and, therefore, not bound by the decree, secondly, he is in possession of the suit property in his own right, thirdly, the property in the name of Padma Rani was benami and lastly, no decree is against him. The respondent/decree holder contested the said applications and the trial court dismissed these applications by common order dated 28.2.2006. Hence, this execution first appeal has been preferred. According to learned counsel for the appellant, it is settled law that the proceedings under Order 21 Rule 97 and 99 CPC is virtually substitute of civil original suit and, therefore, as per the decision of Hon'ble Supreme Court in the case of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another reported in (1997) 3 SCC 694, the executing court was under obligation to decide all issues raised by objector after framing issues and after recording evidence of parties. In this case, the executing court did not frame the issues nor gave opportunity to the appellant to produce evidence to prove his case. In view of the above reason only, the order of the executing court deserves to be set aside. Learned counsel for the appellant vehemently 6 submitted that admittedly, the appellant was never party in suit no.67/2004 and, therefore, the decree is not binding and this is a fact proved from record. The appellant's possession is fully proved by the fact that when the decree holder tried to take possession of the suit property with the help of police force in execution, then the goods of the appellant were found in the premises and were taken over by the decree holder and for that the appellant submitted an application for release of the goods and those goods were delivered to the appellant. In view of the above reasons, the decree could not have been executed against the appellant. Learned counsel for the appellant further relied upon the decision of Hon'ble Supreme Court in the case of Tanzeem-e-Sufia vs. Bibi Haliman & Ors. reported in 2002 DNJ (SC) 635, wherein the decree holder filed application for issuance of warrant of possession by removing obstruction. The objector requested the executing court to treat the said application under Order 21 Rule 97 CPC and hear the objections of the objector. The same was rejected by the executing court, then the Hon'ble Apex Court held that it was not proper for the executing court to reject the application and the executing court should have decide the question relating to right, title and interest in the property as the right, title and interest in the property in 7 such a situation are required to be decided under Order 21 Rule 97 CPC and not separately. The Hon'ble Apex Court directed the executing court to decide the application after hearing the appellant. Learned counsel for the appellant further relied upon the decision of Hon'ble Supreme Court in the case of Ashan Devi & Anr. vs. Phulwasi Devi & Ors. reported in 2004 DNJ (SC) 221, wherein the execution of decree for possession was resisted by the objector and the Hon'ble Supreme Court held that the executing court is justified in adjudicating claims of third party objectors in the execution proceedings. Learned counsel for the respondents/decree holders vehemently submitted that Chandra Prakash tried his best to save his possession which is apparent from the record as initially Chandra Prakash resisted the suit and when he lost it, then he preferred appeal which was argued at length but when this Court dismissed the same, then time was sought for vacating the suit premises. Thereafter, Chandra Prakash preferred SLP which was dismissed by the Hon'ble Supreme Court and within 10 days, the objector has filed the objection petition in the execution case to resist the delivery of possession. It is also submitted that the objector himself appeared as witness of Chandra Prakash and admitted Chandra Prakash's possession over the suit 8 property and thereafter, submitted objection petition which is on the face of it absolutely frivolous and could have been rejected by the trial court summarily and inspite of that position, the trial court gave full opportunity to the objector to prima-facie satisfy the Court about any right of the objector. It is further submitted that the defence taken by the objector that the property in question is purchased benami in the name of Padma Rani or her husband cannot be sustained after coming in force Benami Transactions (Prohibition) Act, 1988. According to learned counsel for the respondents/ decree holders, Tarsem Singh is estopped from taking any plea against the execution of the decree in view of the fact that he himself appeared as witness of Chandra Prakash and gave in his statement that Chandra Prakash is in occupation of the suit property. According to learned counsel for the respondents, in proceedings under Order 21 Rule 97 CPC, the court is required to evolve its own procedure for deciding the issues and if the court finds that the issues are not contentious issues then it is not necessary that in each and every case, the court should frame issue and hold trial as is done in the suit and thereafter, only can pass the order. It is also submitted that the objector in the present case failed to give sufficient facts and also failed to place on record any material on the basis of 9 which he could have make out any case for enquiry on any of the questions of fact. In view of the above, there was no need for the Court to give any opportunity to the appellant to produce any evidence. I considered the submissions of learned counsel for the parties and perused the reasons given by the trial court in the impugned judgment as well as the record. It is not in dispute that Padma Rani filed suit against Chandra Prakash which was registered as civil original suit no.67/2004. This suit was decreed on 1.2.2005 and regular first appeal was dismissed by this Court on 27.4.2005 and SLP was dismissed by Hon'ble Supreme Court on 30.1.2006. During this period, said Chandra Prakash – judgment debtor tried his best to protect his possession by obtaining the order of the Court in first appeal as well as by requesting the Hon'ble Supreme Court for grant of time to vacate the suit premises. In view of the above reasons, it cannot be said that the suit was collusive and for collusive purposes, the parties litigated upto the Hon'ble Supreme Court. The objections raised by the objector are required to be seen in the background of the above facts and one of the important fact is that objector himself had full knowledge of the proceedings of suit 10 no.67/2004 wherein Padma Rani clearly stated that he is owner of the property by registered sale deed. This fact was in the knowledge of the objector Tarsem Singh, brother of defendant Chandra Prakash, as he himself appeared as witness of defendant Chandra Prakash in the witness box and from that time, the objector did not challenge the ownership of Padma Rani by virtue of sale deed, which the objector wants to assail in execution of the decree which was upheld by this Court and upto Hon'ble Supreme Court. So far as possession is concerned, the possession of judgment debtor is admitted fact and even if some of the goods of objector were found in the suit premises, then also, that is of no consequence because of the plain and simple reason that this type of evidence can be created at a later time and particularly when the interests of Tarsem Singh and Chandra Prakash are common which is evident from the fact that not only they are real brothers but in the same suit, Tarsem Singh appeared as witness to see that the decree holder may not get the suit property. In view of the above, there was no merit in the objections filed by the objector. So far as procedure in Order 21 Rule 97 & 99 CPC and under Section 47 CPC are concerned, they are not the proceedings of civil suit where detail issues are 11 required to be framed in each and every case and parties are required to be given full opportunity to produce their evidence. Initially, it is the duty of the objector to produce all relevant material and evidence in the executing court along with the application under Order 21 Rule 97 CPC to show his reasonable basis for claiming any right, title or interest in the property which may entitle him to move application under Order 21 Rule 97 CPC. The objector thereafter should have made out a case for determination of the rights but when he himself failed to produce any material in support of his contention requiring detail enquiry, then the executing court can summarily dismiss the objection petition. Apart from the above, it is clear from the record that the objector never prayed for grant of permission to lead evidence in support of his contention. In view of the above reasons, this appeal of the appellant, having no merits, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya