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Usha And Another vs Paramjit Kaur on 29 January, 2019

Civil Revision No.8451 of 2014 (OM) {1}

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Civil Revision No.8451 of 2014 (OM)
Date of Decision: January 29, 2019

Usha another
…Petitioners
Versus

Paramjit Kaur
…Respondent

CORAM: HON’BLE MR.JUSTICE AMIT RAWAL

Present: Mr. Mohit Jaggi, Advocate,
for the petitioners.

*****

AMIT RAWAL, J.

The present civil revision petition is directed against the

impugned order dated 18.11.2014 (Annexure P-9) at the instance of the

third party objectors Usha and Sukhbir seeking recalling of the order dated

03.12.2011 (Annexure P-6), whereby their objections were dismissed on the

ground that they were bonafide purchasers of land for valuable

consideration vide registered sale deed dated 26.03.2009.

Mr. Mohit Jaggi, learned counsel for the petitioners submitted

that Mohinder Singh had two sons, namely, Bhupinder Singh and Gurpreet

Singh from his first wife. He married second time with Paramjit Kaur and

was blessed with two sons, namely, Amarjit Singh and Prabhjot Singh.

Paramjit Kaur instituted a petition for maintenance for self and children

under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act,

1956 and for declaration that the maintenance be created a charge on the

following property of the defendant:-

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Civil Revision No.8451 of 2014 (OM) {2}

“(a) Kothi/House No.1033, St.No.10, Guru Nanak Nagar,
OPP Gurbaksh Colony, Patiala.

(b) One shop situated near Gurdwara Dukh Niwaran
Patiala and one plot in Mohalla Tripadi Township, Patiala.

(c) Salary of the defendant to the extent of Rs.5000/- per
month which he is drawing from PWD BR near General Post
Office, Patiala.”

Vide decree dated 21.08.2006, she was held entitled to

maintenance of ` 2000/- from Mohinder Singh as arrears of maintenance

from the date of institution of the suit till the life time of the plaintiff No.1

and two sons were entitled to ` 1500/- per month each till they attained the

majority. In the meantime, charge on the property alleged to have been

created.

As regards the relief of injunction, the defendant was permitted

to alienate half share from his property by way of sale, mortgage, gift etc.

Appeal was filed. While dismissing the appeal, the order was modified to

the extent that maintenance amount will be charge on the property of the

defendant and there was no decree for injunction restraining the defendant

from alienating the property in any manner.

On the demise of Mohinder Singh, mutation had been

sanctioned in favour of the first wife on 12.05.2009 on the basis of the Will.

Paramjit Kaur, second wife, filed the suit by challenging the mutation which

was dismissed in default vide order dated 09.10.2013. She is already

drawing the pension of ` 7614/- as per the certificate issued by the office of

the Accountant General (AE), Punjab, but in execution of the judgment

and decree dated 24.07.2008 modified by the Lower Appellate Court, the

property purchased by the petitioners from the sons of first wife vide sale

deed dated 26.03.2009 could not have been attached as there was no bar for

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Civil Revision No.8451 of 2014 (OM) {3}

Mohinder Singh to alienate the land. The order under challenge, thus, is not

sustainable as Bhupinder Singh and Gurpreet Singh had already been

divested of their right by virtue of the sale deed, ibid. The hearing of the

objection petition was kept pending at Ludhiana. Since the property

involved in the present execution was situated in Patiala, but the counsel for

the petitioners requested the court at Ludhiana to send the execution petition

to the Court at Patiala by making precept in the case. The Court at Ludhiana

ought not to have decided the objections and should have transferred the

case to the Court at Patiala. The decree holder tried to play fraud with the

Court by filing a suit for declaration and permanent injunction without

impleading the petitioners as party to the suit, which was dismissed in

default. The objections should not have been dismissed in a summarily

manner as issues were required to be framed in view of the provisions of

Order 21 Rule 100 and 102 of CPC.

There is no representation on behalf of the respondent despite

service as noticed by this Court. Accordingly, I proceed to decide the

revision petition on merits.

This Court, while issuing notice of motion on 11.12.2014,

passed the following orders:-

“Submits that the petitioners are purchasers of the house vide
sale deed dated 26.03.2009 (Annexure P3) from Bhupinder
Singh and Gurpreet Singh, sons of Mohinder Singh (since
expired). Respondent-Paramjit Kaur along with her sons who
were minor, at that point of time, had got a decree of
maintenance dated 21.08.2006 (Annexure P1) for `2,000/- for
herself and `1,500/- each for the minors, till they reached the
age of majority, which was modified on 24.07.2008 (Annexure
P2). It is submitted that there was no such mention of
attachment in the revenue record (Annexure P4).

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Civil Revision No.8451 of 2014 (OM) {4}

On account of the attachment in execution, petitioners
filed objections which were dismissed, firstly on 03.12.2011
(Annexure P6) and thereafter, review application was filed,
which has now been dismissed on 18.11.2014 by the Executing
Court.

It is submitted that Amarjit Singh and Prabhjot Singh,
sons of Mohinder Singh, have become major, as per their own
case, since they had filed the suit for declaration, which has
been dismissed in default on 09.10.2013 (Annexure P11). That
Paramjit Kaur is now a beneficiary of the retiral benefits of
deceased-Mohinder Singh and getting pension of `7614/-
(Annexure P10). It is, accordingly, submitted that in such
circumstances, the petitioners being bona fide purchasers,
were entitled for the benefit of their objections which has
wrongly been dismissed.

Notice of motion for 11.05.2015.

Further proceedings before the Executing Court are
stayed, in the meantime”

It would be apt to reproduce the operative part of the judgment

of the Lower Appellate Court dated 24.07.2008. The same reads thus:-

“It is hereby ordered that the appeal of the appellant is
dismissed with the modification that maintenance amount will
be charge on the property of the defendant. There shall be no
decree of permanent injunction restraining the defendant from
alienating the property in any manner. Parties are directed to
bear their own costs.”

The sale deed in favour of the petitioners is dated 26.03.2009

(Annexure P-3). It is also not in dispute that Paramjit Kaur has already been

taken care of in view of the certificate of the Accountant General (Annexure

P-10). The mutation of inheritance had attained finality in view of the suit

filed by Paramjit Kaur and her sons as the same has been dismissed in

default vide order dated 09.10.2013. The memo of parties and the order are

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Civil Revision No.8451 of 2014 (OM) {5}

reproduced as under:-

“Memo of parties in Civil Suit No.667 of 21.07.2009

1. Paramjeet Kaur aged about 44 years w/d of Sh. Mohinder
Singh.

2. Amardeep Singh aged about 22 years.

3. Prabh Jot Singh aged about 20 years, both sons of late
Sh.Mohinder Singh, all residents of H.No.349, Street No.2,
Guru Arjan Dev Nagar, Samrala Chowk, Ludhiana.

…Plaintiffs
Versus

1. Bhupinder Singh son of Sh.Mohinder Singh,

2. Gurpreet Singh son of Sh.Mohinder Singh,
Residents of H.No.1033, Street No.10, Guru Nanak Nagar,
Opposite Gurbux Colony,Patiala.

Defendant

Order dated 9.10.2013

“Present: None for the plaintiff.

Shri Sandeep Dhawan, Adv.for defendants No.3 and 4.
Case called several times but none has appeared on
behalf of the plaintiff on two consecutive dates of hearing i.e.
19.9.2013 ad 9.10.2013. The plaintiff did not provide the
correct address of defendants No.1 and 2 despite availing
numerous opportunities for the same. The case is pending
consideration since 1.7.2009. It appears that the plaintiff is not
serious in pursuing with the present case. There is no ground
to give any further opportunity to the plaintiff to appear as it
amounts to an abuse of process of Courts. The suit is dismissed
in default. File be consigned to the Record Room.”

Once there was no impediment or hindrance, much less

attachment or sale on the property, the land purchased by the petitioners

should not have been attached in execution of the decree. The trial Court did

not even notice the aforementioned fact, much less the question of pension.

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Civil Revision No.8451 of 2014 (OM) {6}

The Court should not have ordered for attachment of the property as it was

free from encumbrances.

In view of what has been observed above, the orders under

challenge suffer from illegality and perversity. The same are set-aside.

Revision petition stands allowed.

It is made clear that this order shall not prevent the trial Court

in proceeding with the other property of Mohinder Singh after noticing

withdrawal of pension by Paramjit Kaur widow of Mohinder Singh.

January 29, 2019 ( AMIT RAWAL )
ramesh JUDGE

Whether speaking/reasoned Yes/No
Whether Reportable: Yes/No

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