Monday, 13 January 2020

When court should not permit obstructionist to lead evidence in execution of decree proceeding?

1)The petitioners (decree holders) have filed these two writ petitions challenging two identical orders passed by the Court of Joint Civil Judge, Senior Division, Nagpur, (Executing Court) in Special Darkhast Nos. 94 of 2016 and 100 of 2016, whereby respondent no. 2 in both the writ petitions has been permitted to lead evidence in support of objection to execution of the decree raised by the said objector. 

2)At this stage, on 03.09.2018, the respondent no. 2 filed objections before the Executing Court under Order 21 Rule 97 of the Code of Civil Procedure, 1908 (CPC) claiming that the decrees passed in favour of the petitioners were inexecutable. The claim made by the respondent no. 2 was that the property wherein the suit shop blocks were located, was ancestral property in the hand of Jageshwar Sadashio Banwari.


3) The clauses in the said agreements of the year 1999 show that the respondent no. 1 had stated that the subject matter of the said agreements was his absolute property and in the year 2018, the respondent no. 1 has supported the case of the respondent no. 2 to the effect that the property was ancestral property. This indicates that the respondent no. 1 is making all attempts possible to frustrate the decree and that he has been instrumental in the respondent no. 2 fling the objections in the year 2018 in respect of the said decrees. The objections raised by respondent no. 2 do not appear to be bonafide at all. Even otherwise, as noted above, if the entire theory put up by the respondent no. 2 is to be accepted, there can be no difficulty in execution of the decrees in favour of the petitioners, as the suit shop blocks cover only an area of 600 sq.ft. from the total area of 2808 sq.ft. of the entire property.

21. The respondent nos. 1 and 2 cannot be permitted to frustrate the decree and to delay its execution by claiming that the respondent no. 2 is entitled to lead evidence in support of his claim and, therefore, it becomes clear that the Executing Court has committed an error in passing the impugned orders. The respondent no. 2 can very well satisfy his claim in the entire property without disturbing the decrees that have been passed in favour of the petitioners and confirmed upto the Hon'ble Supreme Court. In any case, the respondent no. 2 has only a minuscule share in the entire property, as his own claim shows that he along with eight other siblings would be entitled to 50% of the entire property.



22. In view of the above, this Court finds that the impugned orders passed by the Executing Court are unsustainable. Accordingly, the writ petitions are allowed and the impugned orders passed by the Executing Court are quashed and set aside. Consequently, the objections raised by the respondent no. 2 stand dismissed and there is no question of permitting the respondent no. 2 to lead evidence in support thereof. The Executing Court is directed to dispose of the execution proceedings initiated by the petitioners expeditiously.


IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 6967 and 6979 of 2018

Decided On: 10.04.2019

 Vishambari  Vs. Ram and Ors.

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2019(5) MHLJ 854


1. Rule. Heard finally with the consent of learned counsel appearing for the parties.

2. The petitioners (decree holders) have filed these two writ petitions challenging two identical orders passed by the Court of Joint Civil Judge, Senior Division, Nagpur, (Executing Court) in Special Darkhast Nos. 94 of 2016 and 100 of 2016, whereby respondent no. 2 in both the writ petitions has been permitted to lead evidence in support of objection to execution of the decree raised by the said objector. The respondent no. 2/objector has claimed that the decree passed in favour of the petitioners is inexecutable.

3. The facts leading to fling of the present writ petitions are that the predecessor of the petitioners had filed two suits bearing Special civil Suit Nos. 186 of 2000 and 208 of 2000 against the respondent no. 1-judgment debtor in respect of agreements executed between the said parties in respect of three shop blocks of 200 sq.ft. each located in a building bearing house no. 260, city survey No. 163, mouza Nagpur. These agreements were dated 26.08.1999 and when the respondent no. 1 failed to abide by the terms of the said agreements, the predecessor of the petitioners filed the two aforesaid suits seeking a direction against respondent no. 1 for execution of sale deeds in respect of shop block nos. 2, 3 and 4 in the aforesaid building in terms of the said agreements.

4. On 25.07.2007, the Court of Joint Civil Judge, Senior Division, Nagpur i.e. trial Court, partly decreed the two suits, granting only refund of earnest money in favour of the predecessor of the petitioners. Aggrieved by the same, the said judgments and decrees were challenged before the District court, Nagpur (Appellate Court) by filing two separate appeals. During the pendency of the appeals, the predecessor of the petitioners died and the petitioners were brought on record. By the judgments and orders dated 30.12.2015, the Appellate Court allowed the appeals and granted decrees in favour of the petitioners in entirety. The respondent no. 1 was directed to execute sale deeds in respect of the said shop blocks in favour of the petitioners upon deposit of the consideration amount. The respondent no. 1 filed Second Appeal Nos. 286 of 2016 and 380 of 2016 to challenge the said decrees passed by the Appellate Court in favour of the petitioners. By order dated 05.10.2016 Second Appeal No. 286 of 2016 was dismissed and by order dated 29.11.2016, Second Appeal No. 380 of 2016 was dismissed by this Court. The respondent no. 1 then approached the Hon'ble Supreme Court by filing Special Leave Petitions and it is undisputed that the special leave petitions were also dismissed, as a consequence of which the decrees passed in favour of the petitioners attained finality.

5. The petitioners filed execution proceedings before the Executing Court in respect of the said decrees. Initially, an objection was taken on behalf of respondent no. 1 that decree was not executable because the house number was wrongly mentioned. Thereupon, the petitioners were constrained to file applications for correction of decrees, which were initially rejected by the trial Court but writ petitions filed by the petitioners were allowed and the decrees were corrected, thereby mentioning the correct house number in the decrees. But, thereafter another objection was raised before the Executing Court in respect of the said decrees by a person claiming to be adopted by the respondent no. 1. The said objections were also rejected by the Executing Court. Subsequently, further applications were filed by the respondent no. 1 (Judgment Debtor) before the Executing Court seeking time to bring stay from the Hon'ble Supreme Court, which were also rejected by the Executing Court.

6. At this stage, on 03.09.2018, the respondent no. 2 filed objections before the Executing Court under Order 21 Rule 97 of the Code of Civil Procedure, 1908 (CPC) claiming that the decrees passed in favour of the petitioners were inexecutable. The claim made by the respondent no. 2 was that the property wherein the suit shop blocks were located, was ancestral property in the hand of Jageshwar Sadashio Banwari. It was claimed that the said Jageshwar Sadashio Banwari was holding the property as ancestral property and that the mother of the objector i.e. one Shakuntalabai was the daughter of the said Jageshwar Sadashio Banwari. It was further claimed that the said Jageshwar Sadashio Banwari and his wife Ramabai did not have any male issue. Therefore, they adopted the respondent no. 1 Ram Banwari, who was actually the natural son of the said Shakuntalabai. In other words, Jageshwar Sadashio Banwari adopted his own grandson as his son. According to the respondent no. 2 (objector), after Jageshwar Sadashio Banwari died on 06.02.1976 and his wife Ramabai died on 23.05.1980, the ancestral property devolved upon Shakuntalabai and the respondent no. 1 (Judgment Debtor). It was further pointed out that the said Shakuntalabai had five sons, including the respondent no. 2 (Objector) and four daughters. The said Shakuntalabai died on 14.06.2011 leaving behind the said children. On this basis, it was claimed that the said children of Shakuntalabai were entitled to 50% share in the said property, wherein the suit shops were located and the balance 50% was belonging to the respondent no. 1 (Judgment Debtor).

7. On the basis of the aforesaid claim, the respondent no. 2 raised the aforesaid objections before the Executing Court, claiming that the respondent no. 1 had no authority to enter into the said agreements with the predecessor of the petitioners, leading to the decrees of the specific performance passed in favour of the petitioners. It was submitted that in this backdrop the decrees were inexecutable and that the respondent no. 2 was entitled to lead evidence in respect of the said objection raised on his behalf. In support of the said objections, the respondent no. 2 placed on record copy of the adoption deed, whereby the respondent no. 1 was adopted by Jageshwar Sadashio Banwari, as also certain documents pertaining to deposit of Corporation Taxes by the said Jageshwar Sadashio Banwari in respect of the plot where the suit shops were located.

8. By the impugned orders dated 05.09.2018, the Executing Court allowed the applications filed by the respondent no. 2 (Objector) permitting him to raise aforesaid objections and to further lead the evidence in respect thereof. The present writ petitions have been filed challenging the said orders.

9. Mr. S.S. Sitani, learned counsel for the petitioners in both the writ petitions submitted that the aforesaid objections and the applications seeking permission to lead evidence in respect of the said applications/objections, were raised by respondent no. 2 only with a view to frustrate the decrees passed in favour of the petitioners and that the objections were not bonafide. It was contended that the respondent no. 1 (Judgment Debtor) had set up the respondent no. 2 (Objector) before the Executing Court, only with a view to frustrate the decrees passed in favour of the petitioners, when earlier such frivolous attempts had failed. It was pointed out that in the agreements executed by respondent no. 1 in favour of the predecessor of the petitioners, it was specifically stated that the respondent no. 1 was an absolute owner of the suit shop blocks that were being sold. It was further pointed out that the total area of the plot on which the said house no. 260 was located, was 2808 sq.ft. and since all the three suit shop blocks put together admeasured only 600 sq.ft., even if the claim sought to be made by the respondent no. 2 was to be accepted, the suit shop blocks were far less in area as compared to 50% share claimed by the respondent no. 2 in the aforesaid suit. Even according to the respondent no. 2, he along with eight other siblings were claiming 50% share of the said area, therefore, there was no question of the decrees becoming inexecutable even if the contentions raised on behalf of respondent no. 2 were to be accepted. The learned counsel placed reliance on judgment of this Court in the case of Nandkishore .vs. Chandrakalabai reported in MANU/MH/0348/2018 : 2018 (5) Mh.L.J. 397 in support of the contentions raised on behalf of the petitioners.

10. On the other hand, Mr. B.N. Mohta, learned counsel appearing for the respondent no. 2, submitted that sufficient material had been placed on record by the said respondent to demonstrate that the decrees passed in favour of the petitioners were inexecutable. It was contended that when the respondent no. 2 had placed on record sufficient material to show that he along with his siblings had 50% share in the said property, the respondent no. 1 could not have executed agreements in respect of specific portion of the said property and on this ground alone, the decrees were rendered inexecutable. It was further submitted that the respondent no. 2 and his predecessor i.e. Shakuntalabai were not made parties to the proceedings before any of the Courts and, therefore, the decrees passed in the present case were not executable. The learned counsel further submitted that the Executing Court was justified in permitting the respondent no. 2 to raise the said objection and to further lead evidence in support thereof.

11. Mr. S.C. Mehadia, learned counsel appeared on behalf of respondent no. 1 but he did not advance any arguments in the matter. A perusal of the replies filed on behalf of the respondent no. 1 to the objections raised by the respondent no. 2 before the Executing Court, as also the responses filed to the present writ petitions, shows that the respondent no. 1 has taken a stand to the effect that the respondent no. 2 would be entitled to raise objections to execution of the decrees and that the Court should consider the same in view of the material placed on record.

12. Heard learned counsel for the parties. The facts of the present case show that the decrees passed in favour of the petitioners have attained finality. The objections were raised on behalf of the respondent no. 2 in the year 2018, claiming that his mother had 50% share in the property where the suit shops were located, while the suits for specific performance in the present case had been filed as far back as in the year 2000. The respondent no. 2 feigned ignorance of pendency of the said proceedings from the year 2000 and it was claimed that "recently" the respondent no. 2 became aware about the decrees passed in favour of the petitioners.

13. The claim of the respondent no. 2 is that since his mother had 50% share in the property where the suit shop blocks stood located, the respondent no. 1 could not have entered into the said agreements and the property being ancestral property, wherein no partition had occurred, the respondent no. 1 could not have sold specific portion from the property in the form of the said suit shop blocks. On this basis, it was claimed that the decrees were rendered inexecutable. The facts of the present case also show that although the respondent no. 2 is closely related to the respondent no. 1 (judgment debtor), objection to execution of the decrees has been raised for the first time about 18 years after suits were filed by the predecessor of the petitioners in respect of agreements that were executed in the year 1999. Although, it is a fact that neither the respondent no. 2 nor his mother Shakuntalabai were parties to the litigation, leading to decrees passed in favour of the petitioners at any stage upto the Supreme Court, it needs to be examined as to whether the objections raised by respondent no. 2 in the year 2018 can be said to be sustainable.

14. The principal objection appears to be that the property in which the suit shop blocks stood located was ancestral property, wherein mother of the respondent no. 2 had 50% share and that, therefore, the decrees passed in favour of the petitioners in respect of the specific shop blocks, were not executable. The respondent no. 2 claims that he is entitled to place on record evidence in support of his claim that the property was ancestral property and that his mother had 50% share in the same.

15. In this regard, it is relevant to refer to the agreements executed on 26.08.1999 by respondent no. 1 in favour of the predecessor of the petitioners in respect of the suit shop blocks. The relevant clauses of the three identical agreements in respect of the three shops read as follows:-

"6. That the vendor shall fully Co-operate and shall give all types of help for getting the said property transferred in the name of the Purchaser in City Survey Nagpur Mpl. Corporation and other required Govt. Records, after Execution and Registration of Sale Deed.

7. That the vendor is the absolute owner of the property hereby agreed to be sold and has full right to sell the said property and the said property is hereby agreed to be sold with all rights of ownership over the said property.

8. That the construction of the building is in progress. That it is clearly understood by the purchaser, that only area covered by the Shop Block No. 4 is agreed to be sold by the Vendor to the Purchaser. The purchaser shall not have any right or interest in the F.S.I. of the building except the shop area covered in the Schedule given below. The purchaser shall not have any right over the first floor construction over the shop block agreed to be sold by this agreement and the vendor shall have every right to construct his first floor over the slab of ground floor shop block, agreed to be sold and the purchaser shall not have any right or claim over the remaining F.S.I. available with the Vendor or over the remaining land or over other construction carried out or which may be carried out in future by the vendor. The Purchaser shall not in any way obstruct further construction of the Building. If in future the vendor wants to revise the building plan for any repair additional alterations construction etc. he will have full right to do so and the purchaser will not any objection for the same and his consent will not be require for such revision of building plans."

16. Thus, the respondent no. 1, as the vendor, stated that he was the absolute owner of the property agreed to be sold under the said agreements. Clause 8 of the said agreement quoted above, shows that the predecessor of the petitioners had purchased only specific shop blocks identified under the said agreements. After the period of 18 years of fling of suits for specific performance by the predecessor of the petitioners and after about 19 years of execution of the said agreements, the respondent no. 2 has approached the Executing Court, claiming for the first time that the property in which the suit shop blocks stood located, was ancestral property in which the vendor i.e. respondent no. 1 had only 50% share and that mother of respondent no. 2 i.e. Shakuntalabai had the balance 50% share. The respondent no. 1 has now taken somersault after about 19 years before the Executing Court and this Court to state that the said property was ancestral property. Apart from the fact that it reflects upon the character of respondent no. 1, it needs to be examined whether the objection now sought to be raised on behalf of respondent no. 2 can be said to be bonafide and whether it is legally sustainable.

17. It has come on record that the property in which the suit shop blocks are located covers an area of 2808 sq.ft. Even if the claims of respondent no. 2 are to be accepted, his mother Shakuntalabai would have 50% share in the said property i.e. 1404 sq.ft. and the balance area of 1404 sq.ft. would clearly fall to the share of respondent no. 1. The three shop blocks in respect of which decrees have been passed in favour of the petitioners, add up to the 600 sq.ft. only. Thus, even if the total area of the said three shop blocks is taken into consideration, it cannot eat into the share of the mother of respondent no. 2 Shakuntalabai, even if the contentions sought to be raised by respondent no. 2 are to be accepted. The only question that remains is whether such facts can be taken into consideration and whether sale deeds in respect of the three shop blocks can be permitted to be executed, when the respondent no. 1 could be said to have 50% undivided share in the property, if the claims of respondent no. 2 were to be accepted. In other words, could the property be split and sale deeds be permitted to be executed in pursuance of the decrees passed in favour of the petitioners, when the respondent no. 1, at best, would have 50% of undivided share in the entire property.

18. In this contest, judgment of the Hon'ble Supreme Court in the case of Kammana Sambamurthy .vs. Kalipatnapu Atchutamma reported in MANU/SC/0809/2010 : (2011) 11 Supreme Court Cases 153, is relevant. In the said case, a person had agreed to sell a house property to a purchaser claiming to be the absolute owner thereof. In respect of the said agreement, the purchaser had filed a suit for specific performance wherein a decree was passed. The question that arose was that when the wife of the said person was found to have half share in the said house property, whether the agreement could be enforced against the said person who had agreed to sell the entire house property. In a situation where the vendor was found to have only half share in the house property and yet he had agreed to sell the entire house property, the Hon'ble Supreme Court found that the decree could be granted to the extent of half share of the vendor. The Hon'ble Supreme Court took into consideration earlier judgments and noticing Section 12 of the Specific Relief Act, 1963, held that specific performance of share could be granted. The Hon'ble Supreme Court held in those circumstances that there was no impediment for enforcement of the decree against the vendor to the extent of his half share in the property.

19. In the present case, even if the claims of respondent no. 2 were to be accepted, the vendor i.e. respondent no. 1 would still have a share of 1404 sq.ft. in the entire property. Admittedly, the decrees granted in favour of the petitioners against the respondent no. 1 i.e. the vendor, pertained only to three suit shop blocks, which put together covered an area of only 600 sq.ft. Therefore, it cannot be said that in the present case the decrees passed in favour of the petitioners would be rendered inexecutable, even if the claim raised by respondent no. 2 (Objector) was to be accepted.

20. The facts of the present case demonstrate that the agreements pertained to the year 1999, the suits for specific performance were filed by the predecessor of the petitioners in the year 2000 and after frivolous objections raised before the Executing Court were rejected, in the year 2018 for the first time the respondent no. 2 appeared before the Executing Court, raising the said objections. The clauses in the said agreements of the year 1999 show that the respondent no. 1 had stated that the subject matter of the said agreements was his absolute property and in the year 2018, the respondent no. 1 has supported the case of the respondent no. 2 to the effect that the property was ancestral property. This indicates that the respondent no. 1 is making all attempts possible to frustrate the decree and that he has been instrumental in the respondent no. 2 fling the objections in the year 2018 in respect of the said decrees. The objections raised by respondent no. 2 do not appear to be bonafide at all. Even otherwise, as noted above, if the entire theory put up by the respondent no. 2 is to be accepted, there can be no difficulty in execution of the decrees in favour of the petitioners, as the suit shop blocks cover only an area of 600 sq.ft. from the total area of 2808 sq.ft. of the entire property.

21. The respondent nos. 1 and 2 cannot be permitted to frustrate the decree and to delay its execution by claiming that the respondent no. 2 is entitled to lead evidence in support of his claim and, therefore, it becomes clear that the Executing Court has committed an error in passing the impugned orders. The respondent no. 2 can very well satisfy his claim in the entire property without disturbing the decrees that have been passed in favour of the petitioners and confirmed upto the Hon'ble Supreme Court. In any case, the respondent no. 2 has only a minuscule share in the entire property, as his own claim shows that he along with eight other siblings would be entitled to 50% of the entire property.

22. In view of the above, this Court finds that the impugned orders passed by the Executing Court are unsustainable. Accordingly, the writ petitions are allowed and the impugned orders passed by the Executing Court are quashed and set aside. Consequently, the objections raised by the respondent no. 2 stand dismissed and there is no question of permitting the respondent no. 2 to lead evidence in support thereof. The Executing Court is directed to dispose of the execution proceedings initiated by the petitioners expeditiously.

23. Rule made absolute in the both the writ petitions in the aforesaid terms with no order as to costs.

Upon pronouncement of judgment, the learned counsel for respondent no. 2 prayed for grant of status-quo for a short period. This Court is of the opinion that since the finding is given in the judgment that the respondent no. 2 herein has been set up by the respondent no. 1 (Judgment Debtor) for frustrating the decree, the request made on behalf of respondent No. 2 is rejected.


Print Page

No comments:

Post a comment