Basundhara Devi v. Most. Dhamni Devi

2. This civil revision has been filed by the defendant- second party-judgment debtor-petitioner challenging order dated

14.12.2006, by which learned Subordinate Judge-I, Munger, dismissed Misc. Case No. 2 of 2002 filed by the petitioner under the provision of section 47 of the Code of Civil Procedure ( hereinafter referred to as `the Code’ for the sake of brevity ) for dismissal of Execution Case No. 4 of 2001 on the ground of nullity of the execution proceeding as well as lack of direction to the defendants, who are purchasers from the owners and also for a declaration that the decree was invalid. 2

3. This matter arises out of Title Suit No. 2 of 1985, which was filed by the plaintiffs-decree holders-opposite parties for specific performance of contract on the basis of agreement of sale dated 31.12.1980 executed by defendant first party, numbering three, who are now dead, in favour of the plaintiffs and also for a declaration that two sale-deeds dated 16.06.1982 and 14.07.1982 executed by one of the owners, namely, Mostt. Sharda Devi in favour of defendant 2nd party be declared illegal, fraudulent, collusive and without consideration and are not binding on the plaintiffs.

4. The said suit for specific performance of contract was decreed by the learned trial court vide judgment and decree dated 16.09.1991 specifically holding that the sale-deeds executed by defendant 2nd party-petitioner (Exts. B and B/1) were invalid. Against the said judgment and decree of the trial court, the defendant-petitioner filed a title appeal, which was dismissed by the lower appellate court vide judgment and decree dated 30.04.1996. Against the aforesaid judgment and decree of the lower appellate court, the defendant-petitioner has filed Second Appeal No. 199 of 1996 in this Court, which is pending for final disposal.

5. It transpires that in the meantime the plaintiffs- decree holders filed Execution Case No. 4 of 2001 for execution of the decree, execution of the sale-deed in their favour and delivery of possession of the suit premises. It appears that in the said execution case, defendants-petitioners filed Misc. Case No. 02 of 2002 under 3 the provisions of section 47 of the Code claiming that they were bona fide purchasers from Mostt. Sharda Devi, who for herself and on behalf of her minor son, executed two registered sale-deeds (Exts. B and B/1) and since then they are in peaceful possession thereof. It was further claimed that although the petitioner was party to the suit, no direction was given to her in the judgment and decree sought to be executed. Petitioner also objected that the heirs of the three deceased defendants first party have not even been substituted in the execution case although they have died. Thus, it was claimed that the decree was not executable and the execution case was fit to be dismissed.

5. However, the said petition of the defendant- petitioner was dismissed by the learned court below vide the impugned order dated 14.12.2006, which has been challenged by the petitioner on the aforesaid grounds raised by his learned counsel, who also relies upon a decision of the Hon’ble Apex Court in case of Ramesh Chandra Chandiok and another vrs. Chuni Lal Sabharwal, reported in A.I.R. 1971 Supreme Court 1238.

6. Considering the averments made by learned counsel for the petitioner as well as the materials on record, including the impugned order, it is quite apparent that one of the defendants first party, who is the heir of the remaining defendant first party, is claimed by the plaintiffs-decree-holders to be alive. Even if the defendants first party died, the plaintiffs will always have a right to 4 substitute their heirs and if they do not appear then the Court can execute the sale-deed on their behalf in favour of the plaintiffs in execution of the decree, for which the execution case had been filed.

7. It is also quite apparent that the legality or genuineness of the alleged sale-deeds of the defendant second party- petitioner cannot be considered by the executing court at this stage, specially when the judgment and decree of the trial court, finding the said sale-deed to be invalid, has been affirmed by the lower appellate court and the matter with respect thereto is pending for final decision before this Court in second appeal. In the said circumstances, the decision of the Hon’ble Apex Court in case of Ramesh Chandra Chandiok (supra) as relied upon by learned counsel for the petitioner does not apply to the facts of the instant case.

8. Considering the entire facts and circumstances, it is quite apparent that the learned court below was quite justified in rejecting the petition and misc. case filed by the defendant-petitioner under section 47 of the Code. Furthermore, this Court does not find any illegality or jurisdictional error in the impugned order of the learned court below and, accordingly, this civil revision is dismissed, with a direction to the executing court to proceed with the execution case expeditiously in accordance with law unless there is an order of stay passed in the second appeal mentioned above. MPS/ ( S. N. Hussain, J. )