R.S.A. No. 4681 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 4681 of 2010 (O&M) Date of decision:- 6.12.2010 Food Corporation of India ... Appellant Versus M/s Sehgal & Co. & Ors. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. K.K.Gupta, Advocate, for the appellant. Gurdev Singh, J (oral) C.M. No. 13880 – C of 2010 Heard. For the reasons stated in the application, which is supported by an affidavit the delay in refiling the appeal is condoned. R.S.A. No. 4681 of 2010 The appellant/plaintiff – Food Corporation of India filed suit for declaration to the effect that the sale deed dated 21.11.1995 executed by respondent No.2/defendant No.2 in favour of respondent No.3/defendant No.3 and the mutation sanctioned on the basis thereof and the subsequent enteries in the jamabandi are illegal, null and void, without jurisdiction, result of collusion between the defendants, without consideration and have no effect on his rights and for permanent injunction restraining defendant No.3 from further alienating that land. The suit was dismissed by Civil Judge, (Jr. Division), Samana, vide judgment and decree 12.6.2006. The R.S.A. No. 4681 of 2010 (O&M) -2- plaintiff preferred the first appeal against that judgment and decree which was dismissed by the Additional District Judge, Patiala vide judgment and decree dated 25.2.2009. Now the plaintiff has filed this second appeal against those judgments and decrees. It has been averred in the plaint that the tenders were invited by the plaintiff-corporation for handling work for food storage depot and other hired godowns at Gohana, vide notice dated 23.8.1983. Defendant No.2- Jaspal Singh, Surinderpal Singh, Krishan Lal and Jagdish Bhuttani, who are working under the name and style of respondent No.1/defendant No.1 (M/s Sehgal and handling and Transport Contractors) applied in the said tender and their offer was accepted vide decree dated 22.10.1983 and were appointed as regular Handling and Transport contractor for the said place for the period of two years w.e.f. 1.11.1983 to 31.10.1985. However, they failed to supply the adequate labour from the very beginning in spite of repeated oral and written requests and ultimately the contract was terminated vide letter dated 22.6.1984. It was compelled to get work done for the unexpired period from Balbir Singh DFSC contractor and M/s Gohana Labour and Company and it suffered a loss due to higher rates. The liability of the said persons come to ` 1,66,094.82; after adjusting ` 54092/- as demurrage charge and ` 54,890.16 paid to Bihari Labourers. Notice was issued to them, but to no effect. Thereafter, civil suit was filed against defendants No. 1 and 2 in which they failed to appear. The suit was decreed for the said amount along with interest @6% per annum, vide judgment dated 14.2.1991. For executing the decree an application was filed in the Court of Additional Civil Judge (Sr. Division), Gohana. In that application R.S.A. No. 4681 of 2010 (O&M) -3- defendant No.2 on his own behalf as well as on behalf of defendant No.1 filed an application for setting aside the ex parte decree, which was dismissed as withdrawn on 26.2.1997. Defendant No.3 also filed a similar application, which was dismissed on 30.3.2002. He filed an application under order 21 Rule 54 C.P.C for attachment of immovable property of defendant No. 2 and prayed for restraining him from transferring or charging the property in any way. Vide order dated 20.11.1995, he was restrained from alienating that property/land in dispute till further orders and the same was attached. Even before the passing of that order a letter was issued by its counsel dated 29.9.1995 to Tehsildar Patran for creating a charge on that land. It obtained copy of the jamabandi of the land and then it came to its knowledge that defendant No.1 has already sold the land in dispute to Defendant No.3 vide sale deed dated 21.11.1995. The alleged sale deed and the mutation sanctioned on the basis thereof are illegal, null and void etc. The defendants did not appear before the trial Court and were proceeded against ex parte. The plaintiff produced ex parte evidence and after going through the same and hearing learned counsel on its behalf the suit was dismissed by Civil Judge (Jr. Division), Samana, vide judgment and decree dated 12.6.2006. As already said above, the first appeal preferred by the plaintiff, was dismissed by the first Appellate Court. I have heard learned counsel for the plaintiff. It has been submitted by learned counsel for the plaintiff that the land in dispute was attached by the Executing Court and defendant No.2 was specifically restrained from alienating the land in dispute and still he R.S.A. No. 4681 of 2010 (O&M) -4- executed sale deed in favour of defendant No.3. All the evidence produced by the plaintiff for proving these facts was ignored by the lower Courts and the findings of those Courts are based on non-reading of the evidence and as such substantial question of law arises in the present appeal :- “as to whether such finding can be sustained?” I do not find any force in these arguments of the learned counsel for the plaintiff. If there was any such violation of the order of the Executing Court the remedy of the plaintiff was by way of an application for contempt of the court itself. No charge was ever created on the land in dispute and if the sale deed had been executed after attaching of the property still the Executing Court could have made an order of sale of that property. It cannot be said that the findings of the lower Courts are based upon the misreading of the evidence and are perverse. No substantial question of law arises in the present appeal. The same is, therefore, dismissed. December 6, 2010 (Gurdev Singh) tripti Judge