CIVIL APPEAL 3888 of 1994 on 7 October 1991

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Case No. : C. R. No. 3888 of 1994Date of Decision : July 09, 2013

Sukhdev Singh (dead through LRs)....Petitioner(s)Vs.Joginder Singh and others....Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

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Present :Mr. Harish Goel, Advocatefor the petitioner(s).

Mr. Animesh Sharma, Advocatefor respondent no. 1.

None for respondents no. 2 and 3.

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L. N. MITTAL, J. (Oral) :

Decree-holder (DH) Sukhdev Singh has filed this revisionpetition assailing order dated 07.10.1991 passed by the Executing Court andorder dated 28.07.1994 passed by the lower appellate court.

This case has a checkered history. The suit land was owned byJawala Singh. He suffered consent decree dated 30.03.1983 regarding thesuit land in favour of his sister's son Joginder Singh son of Raghbir Singh –

C. R. No. 3888 of 1994

respondent no. 1, who was accordingly declared to be owner in possessionof the suit land. Mutation thereof was also sanctioned in favour ofrespondent no. 1 on 23.05.1983.

On 29.08.1984, Jawala Singh filed suit for possession of thesuit land by seeking declaration of his ownership thereon and by assailingthe consent decree dated 30.03.1983, which was passed on familysettlement/oral gift. The consent decree was challenged by Jawala Singh onthe ground of fraud and misrepresentation and also on the ground that itrequired compulsory registration and that plea of family settlement was notavailable. Courts below, in that suit, found that there was no fraud ormisrepresentation in passing of the consent decree, but held that the decreerequired compulsory registration and being unregistered, did not conveytitle to respondent no. 1 herein and the consent decree was based on familysettlement but the said basis of the consent decree was missing. The saidsuit filed by Jawala Singh was decreed by both the courts below. However,R. S. A. No. 2120 of 1987, preferred by respondent no. 1 herein JoginderSingh son of Raghbir Singh, has been allowed by Division Bench of thisCourt, vide judgment and decree dated 11.08.1988, holding that the consentdecree in favour of respondent no. 1 did not require registration and itconveyed valid title in favour of respondent no. 1. Consequently, suit filedby Jawala Singh was dismissed.

Sukhdev Singh – petitioner herein filed suit against anotherJoginder Singh son of Kehar Singh and his son Pritpal Singh (respondentsno. 2 and 3 herein) alleging that Jawala Singh, through respondent no. 2 asAttorney, agreed to sell the suit land to the petitioner vide agreement dated11.04.1987. Jawala Singh has since died and in view of his Will,respondents no. 2 and 3 herein, inherited the suit land from Jawala Singh.Accordingly, petitioner claimed possession of the suit land by specificperformance of the agreement dated 11.04.1987. Respondents no.2 and 3herein (defendants in the said suit) admitted the claim of the petitioner.Consequently, the said suit was decreed vide judgment and decree dated24.11.1988. Petitioner as DH filed execution petition for execution of thesaid decree.

In the execution petition, respondent no. 1 herein filedobjections alleging that the decree was not executable against him becausehe was owner of the suit land since prior to the alleged agreement dated11.04.1987.The DH-petitioner controverted the objections filed byrespondent no. 1-objector. The Executing Court, after framing issues andrecording evidence, allowed the objection petition and dismissed theexecution petition, vide order dated 07.10.1991. Appeal against the saidorder, preferred by DH has been dismissed by learned Additional District Judge, vide order dated 28.07.1994. Feeling aggrieved, the DH has filed theinstant revision petition to challenge the aforesaid orders.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner contended that consent decree dated30.03.1983 in favour of respondent no. 1-objector was based on oral gift,and therefore, the said decree required compulsory registration and beingunregistered, did not convey any title to respondent no.1-objector. Reliancein support of this contention has been placed on a judgment of CalcuttaHigh Court in the case of Dipali Roy vs. Samir Banerjee reported as2010 (4) ICC 473, on a judgment of Andhra Pradesh High Court in the caseof K. Bhaskaram and another vs. Mohammad Moulaa (Died) andothers reported as 2005 AIR (A.P.) 524 and also on some judgments ofthis Court namelyDeepa and others vs. Bhani (died) reptd. by her LRsreported as 1996 (1) HLR 224,Biru vs. Nanhi reported as 2007 (3) R.C. R. (Civil) 811,Bhoop Singh vs. Ram Singh Major and othersreported as 1996 (1) PLR 26 and Shailesh Kumar vs. Mrs. SandhyaGupta reported as 2002 (1) R. C. R. (Civfil) 441.

The contention is completely misconceived and devoid of meritin the facts and circumstances of the instant case. As noticed herein before,the said plea taken by Jawala Singh, in the suit filed by him to challenge theconsent decree, has already been repelled by Division Bench of this Court in judgment dated 11.08.1988 passed in R. S. A. No. 2120 of 1987. In viewof the said finding pertaining to the instant case itself, the aforesaidcontention cannot be accepted.It is also worth mentioning that decree dated 24.11.1988(sought to be executed) has been obtained by petitioner-DH in collusionwith respondents no. 2 and 3 – JDs by playing fraud on the Court as well ason respondent no. 1 – objector. As noticed herein before, respondent no.l –objector had filed R. S. A. No. 2120 of 1987 in suit preferred by JawalaSingh (since deceased). In the said RSA, Jawala Singh was represented byrespondents no. 2 and 3 herein as his legal heirs. The said RSA was allowedby this Court vide judgment and decree dated 11.08.1988. It wasimmediately thereafter that on 16.08.1988, the petitioner filed suit againstrespondents no. 2 and 3, who admitted the claim of the petitioner in the suitand consequently, suit was decreed vide judgment and decree dated24.11.1988. Thus, respondents no. 2 and 3, knowing fully well thatrespondent no.1 – objector had succeeded in his aforesaid RSA, suffered theaforesaid judgment and decree dated 24.11.1988 in favour of the petitioneron the basis of alleged agreement to sell dated 11.04.1987 by concealing thefactum of the previous suit instituted by Jawala Singh leading toR. S. A.No. 2120 of 1987allowed by this Court vide judgment and decree dated11.08.1988. Thus, the decree sought to be executed is nothing but a result of fraud played by petitioner and respondents no. 2 and 3 on the Court aswell as on respondent no. 1. For this added reason also, the decree isinexecutable against respondent no. 1, who is not party to the said decreeand is owner of the suit land.

It is thus manifest that objections preferred by respondent no. 1have been rightly allowed by the courts below. The impugned decree is notexecutable against respondent no. 1-objector. The instant revision petitionis completely meritless. Impugned orders of the courts below do not sufferfrom any perversity, illegality or jurisdictional error so as to call forinterference by this Court in exercise of limited revisional jurisdiction underSection 115 of the Code of Civil Procedure. Accordingly, the revisionpetition is dismissed.

July 09, 2013monika

( L. N. MITTAL )JUDGE