SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 1 S.B. Civil Misc. Appeal No.1439/2008 Jai Prakash Vs. Jetha Ram DATE OF ORDER : - 16.10.2008 HON'BLE MR. PRAKASH TATIA, J. Mr. HS Sidhu, for the appellant. <><><> Heard learned counsel for the appellant. The money decree was obtained by one Jetha Ram against Bhagirath on 24.2.2007 wherein a plot No.I72 was attached. The appellant Jai Prakash – the brother-in-law of Bhagirath judgment-debtor submitted a petition under Order 21 Rule 58 CPC stating therein that he entered into an agreement for purchase of the said plot no.I72 on 19th July, 2004 for a consideration of Rs.50,000/- and, therefore, the said plot neither can be attached nor can be sold out in the execution launched by the decree holder Jetha Ram. The executing court after considering the said agreement and relation between the judgment-debtor and the appellant i.e., brother-in-law, observed that there is every possibility that agreement dated 19th Jul, 2004 might SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 2 have been prepared ante dated and there is every possibility that it may be a collusive transaction and with object to frustrate the recovery of the money decree obtained by Jetha Ram. Learned counsel for the appellant submitted that the property, which is subject matter of agreement to sell prior to obtaining the decree cannot be sold because of the reason that the agreement for sale creates an obligation attached to the ownership of the property and the Hon'ble Apex Court in the case of Vannakakkal Kallalathil Sreedharan Vs. Chandramaath Balakrishan & Anr reported in (1990) 3 SCC 291 after over ruling the view taken by other High Courts approved that the view taken by the High Courts of Madrass, Bombay, Calcutta and Travancore- Cochin and recognized the rights of the vendee under contract. Learned counsel for the appellant further submitted that this Court in the case of Chaitanya Prakash Bansal Vs. Miss Krishna Biyani reported in 2008(3) RLW 2631 (Raj.) held that such objection application ought not to have been disposed of by summary manner and law and principle of natural justice required that opportunity of leading evidence ought to have been granted to the parties SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 3 and therefore, according to learned counsel for the appellant rejection of the application of the appellant without giving opportunity to the party to prove the fact and in summary manner is absolutely illegal. I considered the submissions of learned counsel for the appellant and perused the facts of the case. Any application or any issue raised either in miscellaneous proceedings or in application required to be decided in accordance with law and it is principle of natural justice that appellant be given opportunity to prove the facts asserted and alleged by him. There are two procedures, one is regular procedure which is normal procedure for the trial of the suit and another procedure is summary procedure, which is normally adopted in misc. proceedings. Whenever it is needed in miscellaneous proceedings the opportunities are granted for leading evidence and other party to rebut the evidence, but in a case where from the facts pleaded by the applicant himself, the applicant is not entitled to any relief then there cannot be and there should not be any detailed inquiry. In the present case, according to the appellant a decree was obtained by Jetha Ram on 24.2.2007 against his SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 4 own brother-in-law Bhagirath. That decree was sought to be executed by lodging the execution petition then the appellant submitted objection under order 21 Rule 58 CPC with the plea that he purchased the property by entering into agreement to sell with the judgment-debtor, his bother-in-law and the written agreement was executed on the stamps of Rs.100/-. Therefore, without disputing any fact alleged by the appellant and accepting the facts alleged as true that agreement to sell is supported by genuine document and the transaction was genuine even then by this agreement the applicant got only one right and that is the right to purchase the property by enforcing the agreement for which the provisions are made in the Specific Relief Act. This is settled law that on the strength of agreement to sell property the vendee does not gets right, title or interest in the said property. In the present case, as facts disclosed by the objector-appellant the vendor cum judgment-debtor who is brother-in-law of the appellant vendee has not executed the sale deed in his favour then no right or interest much less to title to property stand created in the property of the vendor. If the appellant, the earlier agreement holder has right to enforce the agreement SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 5 against the judgment-debtor vendor in accordance with law then his right is not affected because of the voluntary or involuntary sale executed by the vendor subsequent to the agreement to sale. The Hon'ble Apex Court in the judgment Vannarakkal Kallalathil Sreedharan (relied upon by learned counsel for the appellant) very specifically held that agreement for sale creates an obligation attached to the ownership of the property. That obligation is of the vendor and is to sale the property in favour of the persons in favour of whom he agreed to sale the property. That obligation can be discharged voluntarily by the vendor and if not discharged then the vendee can seek relief through the court of law. The Hon'ble Apex Court held that because of attachment of the property by any decree holder it cannot be said that attachment will be free from the obligation incurred under contract for sale. Meaning thereby, the purchaser is bound to discharge the obligation created by his predecessor, but that depends upon the fact of valid agreement for sale by the vendor in favour of the vendee and it must be earlier in time, it must also stand to the ground for getting the discretionary decree for specific performance of contract. SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 6 In view of the above reasons it was not fit case for detail inquiry on facts as even if facts as alleged by the appellant are taken to be true, he failed to make out a case for any inquiry. So far as observation of the court in order dated 4th Oct., 2008 that agreement may be ante dated agreement and may have been executed to frustrate the decree of the decree holder is concerned, for that suffice it to say that the court clearly observed that there is possibility of agreement being ante dated and fraudulent. This finding is not the finding of fact recorded as such after giving opportunity to the appellant to prove the facts, therefore, that was the fact in addition to the legal position on the basis of which the appellant was not entitled to the relief under Order 21 Rule 58. Even if this observation is set aside even then the petitioner is not entitled to any relief in view of the reasons mentioned above. At this stage, learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in the case of Kancherla Lakshminarayana Vs. Mattaparthi Shyamala & Ors reported in AIR 2008 SC 2069. The facts of the said case has no relevance to the facts of this case but SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 7 need to be mentioned here because of the reason that acording to learned counsel for the appellant the Hon'ble Apex Court held that High Court erred in rejecting the application under Order 21 Rule 58 CPC after holding that the objection to attachment of the property is not tenable at the stage when it was submitted. In the said case, the respondents entered into agreement for purchase of the property and finally had to file the suit for specific performance of contract for relief of execution of sale deed in favur of the vendee. The wife of the second respondent filed a maintenance case before the family court wherein she sought interim relief of injunction against the respondent from alienating the property in question and that application was allowed by the court. Ultimately the decree was also passed awarding maintenance for the wife then she submitted the execution petition wherein the property in question was put to public auction. The third respondent purchased the said property and in that proceedings an application under Order 21 Rule 58 CPC was filed and that was rejected by the High Court holding that the application is not maintainable. In that situation, the Hon'ble Apex Court held that mere holding of auction SBCMA No.1439/2008 Jai Prakash Vs. Jetha Ram 8 sale does not bar the raising of objection to attachment of property. The word “sold” in clause (a) of the proviso to Rule 58 was interpreted. Therefore, that was a case deciding the issue to what time one can file objection under Order 21 Rule 58 CPC, therefore, has no relevance to the facts of this case. In view of the above reasons I do not find any merit in this appeal and the same is hereby dismissed. (PRAKASH TATIA), J. c.p.goyal/-