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Whether executing court can reject objection to execution of decree without regular enquiry as suit?


C.A. No. 6569 of 2016 (Arising out of SLP(C) No. 22375 of 2012)

Decided On: 19.07.2016

Bool Chand and Ors.
Rabia and Ors.

Hon’ble Judges/Coram:
V. Gopala Gowda and A.K. Goel, JJ.

Citation: (2016) 16 SCC 270

1. Leave granted. This appeal has been preferred against judgment and order dated 17th April, 2012 of the High Court of Rajasthan at Jaipur in Civil Execution Second Appeal No. 2 of 2011. Only question for consideration is whether the High Court was justified in remanding the matter for fresh consideration of objection filed by the Respondents under Order XXI Rule 97 Code of Civil Procedure, to the execution of decree dated 17th September, 1980 in Civil Suit No. 34 of 1978 in favour of the Appellants.

2. The Appellants purchased the suit property in an auction held on 11th September, 1963 under the provisions of Evacuee Interest (Separation) Act, 1951 (LXIV of 1951). The competent officer issued the sale certificate dated 8th May, 1967 in favour of the Appellants. Since actual possession was not delivered in spite of sale certificate in favour of the Appellants, Suit No. 34 of 1978 was filed for declaration and possession against Smt. Jannat (daughter of Munir Khan) and Babu Khan (son of Munir Khan) who were in possession of the property. After trial, the suit was decreed on 17th September, 1980. Decree was affirmed in appeal by the first appellate court on 15th February, 1996 and by the High Court on 09th September, 2008.

3. The main plea of the Defendants was that of adverse possession which was repelled concurrently by the three courts and in proceedings spreading over a period 30 years. The High Court held:

“The courts below have come to a finding that under the relevant provisions of the Act the sale deed so made by the custodian after auction was not required to be registered and further even the Defendants-Appellants have not been able to prove their adverse possession as claimed in the written statement. The contention of the learned Counsel for the Defendants-Appellants that the suit could be filed only under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, could not be accepted on the basis of evidence on record since the Defendants-Appellants had claimed ownership on the basis of adverse possession and the Plaintiffs-Respondents claimed the declaration and possession on the basis of sale made by custodian of the evacuee property. On the basis of concurrent findings of fact, since after due consideration property discretion has already been made by both the courts below, the substantial question framed do not survive now, more so, when no error or illegality apparent on the fact of record has been pointed out.”
4. The Appellants filed execution application No. 7 of 1996 which remained pending on account of appellate proceedings but after dismissal of the second appeal by the High Court, the Respondents 1 to 6 filed objection petition under Order XXI Rules, 97, 99 read with Rule 101 Code of Civil Procedure being Civil Miscellaneous Application No. 23 of 2010. The case of the objectors was that the suit property was in the name of Sikandar which was inherited by Sakoora ancestor of the objectors. Jannat, original Defendant in the suit was a licensee of Sakoora. The said licence was revoked by Rabia objector who was wife of Sakoora and the house was locked on her behalf. The said Jannat colluded with the Appellants and got the decree passed. The objectors were necessary party and were not bound by the decree. Jannat wrongly claimed herself to be the adopted daughter of Sikandar.

5. The above stand was contested by the Appellants. It was stated that the original Defendants, Jannat and her brother Babu Khan, were in possession of the house. The objectors were never in possession. The decree was not collusive but after full contest for 30 years. The property got vested in the custodian as the owner had migrated to Pakistan. The same was sold in public auction to which the objectors never took any objection.

6. The Executing Court held that Aladeen alias Dino son of Mohd. Vyapari was party to the sale certificate in favour of the Appellants who was grandfather of the objectors. The objectors being heirs of Dinu were bound by the sale certificate. Their predecessors never owned the property. The sale certificate in favour of the Appellants was never challenged. Only on the ground that the property was locked, the objectors cannot be declared owner. The objectors had the knowledge of the proceedings. Accordingly, the objection petition was dismissed. Relevant observations are:

“The objectors are also saying themselves heirs of Sikandar and Smt. Jannat is also saying herself heir of Sikandar. Court of the Competent Officer did not hold Sikandar owner of the said property, then how heir of Sikandar became owner of the property. The document which has been filed by the objectors are prior to 1967. No document has been filed after year 1967 and whether late Sikandar was alive or not after 1967 this has not been made clear by the objectors. The sale letter which is in favour of the decree holder this is about 40 years old and this has not been challenged anywhere. Only on the basis of the statements of the applicant that their lock is fixed on the property, it cannot be held that owner of that property became objectors. While the objectors have not such document whereby it can be proved that when this property was declared evacuee at that time Sikandar was alive or not? Dino who is the grandfather of the objectors made his presence before the competent officer. After hearing him this sale letter was issued. Therefore, it cannot be held that the objectors have no knowledge about this sale letter.”
7. The about finding was affirmed on appeal as follows:

“Sole successor of Sikandar has been told Dino. Dino filed a suit before the competent officer in relation to the evacuee property and it is evident from the perusal of the sale certificate that this matter was run under the title Dino v. Custodian of Evacuee Property and according to the judgment of this matter after hearing of Dino by holding this house No. 957 as evacuee property sale-deed was issued in favour of the Plaintiff Boolchand on 08.05.1967. Dino was party in this matter, he never challenged the sale certificate and his grand son and grand daughter who are the present Plaintiff, they have also not challenged this sale deed. Now heirs of Dino are estopped to initiate proceeding against the proceeding which was done prior to sale certificate. This objection cannot be brought by them after 40 years. Rights of the objectors are under the right of Dino and the alleged rights of both of them has been seized by the said judgment, therefore, no right and favour of the applicants are involved in this property, therefore, the decision which has been conferred by the learned subordinate court whereby ownership of the applicants had not sustained, this decision is correct according to the facts and law.”
8. On second appeal before the High Court, the impugned order has been passed. The operative part is as follows:

“The Executing Court has not come be a conclusion that in the present case regular inquiry as a suit is not required to be held and the application filed by the Appellants can be effectively decided only on the basis of affidavits and documents filed along with the application. I am of the view that without coming to such a conclusion it cannot be held that in the present case the procedure prescribed has been duly followed. From the impugned order it is also not clear that the Appellants were given opportunity to file affidavits in support of their claim and whether opportunity to produce oral evidence or to cross examine the decree-holder-Respondent or his witnesses was given. Therefore, it is reasonable that after setting aside the impugned judgments and decree passed by the courts below the matter be remanded back to the Executing Court with a direction to decide the objections/application filed by the Appellants under Order 21 Rule 97 Code of Civil Procedure in accordance with law and more particularly the procedure indicated in the case of Mukesh Chouhan v. Ram Prasad and Anr. (supra).”
9. We have heard learned Counsel for the parties.

10. It is clear from the finding recorded by the courts below that the predecessor of the Respondents was party to the sale certificate which the Respondents never challenged. There is no evidence on record that they were in possession prior to the passing of the decree as they did not take in proceedings in spite of knowledge of the proceedings for a long period of time. The suit was duly contested by the original Defendants for a long period of 30 years. It could not, thus, be held that the original Defendants had colluded with the Appellants Plaintiffs. In this view of the matter, there was no justification for the High Court to have set aside the order of the courts below only by observing that the executing court had not recorded finding that regular enquiry, as suit was not required. This observation is also against the record as the executing court has, after finding that the objections were misconceived in substance, held that no regular enquiry as a suit was required. There was thus, no infirmity in the finding recorded by the courts below in rejecting the objections.

11. While a genuine petition to execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long drawn contested proceedings. Attempt to deprive the decree holder of benefit of such decree should be discouraged by the court where such objection is raised. The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach. Accordingly, this appeal is allowed, the order of the High Court is set aside and that of the courts below is restored.Execution proceedings may, however, be finalized at the earliest preferably within three months from the date of receipt of a copy of this order. The parties are directed to appear before the Executing Court for further proceedings on 29th August, 2016.


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