CR/3884/2008 of JAGDISH KUMAR Vs AJAY KUMAR AND ORS on 24 December 2009

1. Whether the objectors are bonafide purchasers of the suitproperty, if so its effect? OPD.property, if so its effect? OPD.

2. Whether the DH had knowledge about the factum of possessionof the objectors, if so its effect? OPDof the objectors, if so its effect? OPD

3. Whether the objection petition is time barred? OPR

4. Relief.

Having perused the impugned order and having heard the rivalcontentions, it may be noticed that it is settled proposition of law that theobjection petition as preferred by the parties in execution is to be decidedsummarily and after taking any such evidence as may be brought on record

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by the parties. The intent and purport of the rules is the application of mindbefore proceeding to decide about framing of the issues and decide if theobjection having any merit need to be adjudicated like a trial. In case theCourt reaches the conclusion that the objections need to be proved on meritsand the same are not vaxious or superfluous, then the Court may proceed totry them by calling the evidence of both parties, otherwise, such objectionsare required to be disposed of summarily. The analogy to decide theobjections summarily is that if the objections raised against the decreepassed after a protracted trial, the decree could be rendered useless to allowthe decree-holder to hang over a fruitless tree. In Minakshi Saini V/sGurcharan Singh Bharmra, 2002(2) Civil Court Cases, page 229(P&H), it has been observed as under: -

There is an attempt on the part of the objectors toprolong the already protracted litigation further intoinfinity. The decree-holders are trying to execute thedecree in their favour for the last 21 years. It has beenobserved by this Court in Usha Devi V/s Parshadi Lal,1988(2) PLJ 673 and also in another case that need offraming of issues would depend upon the facts andcircumstances of each case and it is not incumbent uponthe executing Court that it must put to trial everyobjection filed in execution proceedings may befrivolous, vexations and delay causing objections can besummarily decided. It has been also held in SomParkash V/s Santosh Rani, 1997(1) PLR (Punjab) 89 thatadjudication of objections does not mean that framing ofissues is always necessary for the executing Court andthe term 'adjudication' as used in Rules does not start andend with the framing of issues but it requiresappreciation of the case of the objector and documents in support of such objections. Thus, framing of issues isnot always necessary and appreciation of pleadings ofthe objector and his documents means adjudication.

The present objection petition involves pendente lite sale which isof no consequence, as if such transactions are allowed to take place andgiven validity then the litigation would never end.

In Sanjay Verma V/s Manik Roy and others, 2007(1) RCR

(Civil), 408, it has been observed as under: - The principles specified in Section 52 of the T.P.Act arein accordance with equity, good conscience or justicebecause they rest upon an equitable and just foundationthat it will be impossible to bring an action or suit to asuccessful termination if alienations are permitted toprevail. A transferee pendente lite is bound by thedecree just as much as he was a party to the suit. Theprinciple of lis pendens embodied in Section 52 of theT.P.Act being a principle of public policy, no questionof good faith or bona fide arises. The principleunderlying Section 52 is that a litigating party isexempted from taking notice of a title acquired duringthe pendency of the litigation. The mere pendency of asuit does not prevent one of the parties from dealingwith the property constituting the subject matter of thesuit. The Section only postulates a condition that thealienation will in no manner affect the rights of the otherparty under any decree which may be passed in the suitunless the property was alienated with the permission ofthe Court.

The aforesaid judgment certainly has condemned the pendente litetransactions. In any way, the trial Court, before framing the issues appearsto have not applied its mind by making necessary observations, regarding

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the necessity to frame the issues. Non-application of mind results into aserious prejudice to the decree-holder as the framing of fresh issues wouldimply a second trial before he earns the fruits of the decree.

Resultantly, I accept this petition, set aside the impugned orderand remit the case back to the Executing Court to decide the case afresh inaccordance with law.

24.12.2009shamsher

(A.N.JINDAL) JUDGE