ESA No.36 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ESA No.36 of 2009 Decided on : 07.01.2010 Madhu Bala ... Appellant versus Virender Kumar & another ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. S.K.Jain, Advocate for the appellant. Mr. B.S.Mittal, Advocate for respondent No.1. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent orders of the Executing Court and the Lower Appellate Court dismissing the objections filed under Order 21 Rule 97 by the appellant. Brief facts of the case are that by agreement dated 09.08.1993, an agreement to sell the shop was executed in favour of respondent No.1 by respondents No.2 & 3. Ultimately, respondent No.1 filed a suit for specific performance which was decreed upto the Hon'ble Supreme Court. During the execution, appellant filed this petition as above-mentioned claiming that by ESA No.36 of 2009 -2- a subsequent family settlement, she had become the owner of shop in dispute and in fact respondents No.2 & 3 suffered decree in her favour on 17.09.1994. Both the Courts below have dismissed these objections. Learned counsel for the appellant has argued that both the Courts below have erred in straightway holding that the decree was a collusive decree without framing any issue or allowing her to lead any evidence in this regard. He has relied upon the judgment of Hon'ble Supreme Court titled as N.S.S.Narayana Sarma & others versus M/s Goldstone Exports (P) Ltd. & others, reported as 2002(1) PLJ page 573 and has place reliance on particular para No.19, which is as below: “From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs the attempt by the decree-holder to dispossess him from the said property, the executing court is competent to consider all the questions raised by the person offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as a decree. From the averments made in the petition filed by the appellants before the executing court, it is clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is the further case of the appellants that the right in the property had vested in them much prior to filing of the present suit the decree of which is under execution. It is to be kept in mind that the suit as initially filed was a suit for ESA No.36 of 2009 -3- partition simpliciter. In such a suit the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned Single Judge and the Division Bench dismissed the petition filed by the appellants as non-maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Pygah Committee or the State Government, who are parties in the suit, they are bound by the decree. The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State government under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the Single Judge as well as Division Bench of the High Court, we are constrained to observe that the said order are based on a complete misreading of the case of the appellants and misconception of the legal position relevant to the matter. Considering the fact and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a Single Judge at the first instance.” The salient fact in that case was that the objectors had claimed that right in the property vested in them much prior to ESA No.36 of 2009 -4- the suit the decree of which was under execution. As noticed above, the present is not the situation in this case. Learned counsel for the appellant has further relied upon the decision of of this court in the case of Subhash Chander & another versus Smt. Phoolwati & others, reported as 2009(4) Civil Court Cases 151 and has placed reliance on particular para No.13 which is as follows: “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 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 ESA No.36 of 2009 -5- scuttle the sale deed executed by the judgment debtor in favour of the appellants.” It would be seen that that was a case where the objectors had purchased the property before the date fixed for execution of the sale deed and not a case where the brothers had suffered a decree in favour of unmarried sister as in the present case. Learned counsel for the respondent No.1 has relied upon the decision of a 3-Judge Bench of the Hon'ble Supreme Court titled as Silverline Forum Pvt. Ltd. vs. Rajiv Trust & another, reported as AIR 1998 Supreme Court 1754, particularly on para 12-13, which is as follows: “It is clear that Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed inquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the court deems it necessary.” In my opinion, the present case is fully covered by the decision of Hon'ble Supreme Court by Silverline Forum Pvt. Ltd. (supra). In this view of the matter, this appeal is dismissed with the clarification that the imposition of cost of Rs.10,000/- is ESA No.36 of 2009 -6- set aside. Since the main case has been decided, all the pending civil miscellaneous applications, if any stand disposed of. January 07, 2010 (AJAY TEWARI) sonia JUDGE