Balwinder Kaur & Ors. v. CORUM

respondent-plaintiff Prem Kumar Dhawan son of Sohan Lal, for possession by way of specific performance of the agreement to sell dated 29.7.1988, filed against Brij Kumari daughter of Sunder Singh, was decreed and the defendant was directed to execute and get the sale deed registered, pertaining to the suit property in favour of the plaintiff on deposit of the balance price of the sale consideration by him within two months, failing which, the liberty was granted to the plaintiff to get the sale deed executed and registered through Court, vide judgment and decree dated 15.3.1995.

2. The defendant did not comply with the decree and it necessitated the plaintiff to file the execution petition. The various objectors/persons filed variety of objections in the execution petition. Similar objections were filed by appellants Balwinder Kaur and others, objecting to the execution of the decree claiming themselves to be subsequent purchasers. The appellants claimed that they purchased the property in dispute through the two different sale deeds dated 24.9.2003, E.S.A.No.35 of 2009 2 executed by Som Parkash, Neelam Galhotra, Hari Om and Rakesh Kumar through their attorneys Ranbir Singh and Kabal Singh. The vendors of the appellants were claimed to have purchased the property from Tejinder Kumar, vide sale deed dated 28.4.2000 and that Tejinder Kumar had purchased the property from Harjinder Kaur, attorney of Brij Kumari JD, vide registered sale deeds dated 13.10.1998 and 16.10.1998. Appellant No.3 was stated to have purchased the property from Gurpreet Singh, vide sale deed dated 11.6.2004, who had earlier purchased from Harjinder Kaur, attorney of Brij Kumari, vide aforesaid sale deeds. Hence, they prayed for dismissal of the execution petition.

3. The executing Court dismissed the objections of the appellants, vide impugned order dated 8.12.2006.

4. Aggrieved by this order, the appellant-objectors filed the appeal, which was dismissed by the first Appellate Court as well, vide order dated 21.3.2009.

5. The appellants still did not feel satisfied with the impugned orders of the courts below and filed the present appeal.

6. Having heard the learned counsel for the appellants, having gone through the record with his valuable help and after considering the matter deeply, to my mind, there is no merit in the appeal.

7. It is not a matter of dispute that suit for possession by way of specific performance of the agreement, filed by the plaintiff was decreed as back as on 15.3.1995 by the trial Court. The same had already attained the finality. When the defendant did not comply with the directions contained in the decree, the plaintiff filed the execution petition. The appellant-objectors, who claimed themselves to be subsequent purchasers in the manner E.S.A.No.35 of 2009 3 indicated here-in-above, filed the objections, objecting to the execution of the decree, which was dismissed by the executing Court, vide order dated

8.12.2006, the operative part of which is, as under:- “Thus, it was held by my learned predecessor that since Harjinder Kaur was not the attorney of Smt.Brij Kumari after cancellation of the power of attorney, as such, objectors Gurpreet Singh and others cannot be held to be the bonafide purchasers for consideration, particularly when they have not confirmed from the office of Sub Registrar regarding validity of the power of attorney and when the conduct of Smt.Brij Kumari raised suspicion as Brij Kumari directly negotiated the deal but the agreement to sell was signed by power of attorney though Brij Kumari was present there. So in the present execution petition also the objections have been filed by Balwinder Kaur and others that they have also purchased the property, but during the pendency of the case and as per findings given by my learned predecessor vide order dated 6.12.2004 in the petition so filed by Gurpreet Singh and others, it is categorically held that the power of attorney in favour of Harjinder Kaur was cancelled by Smt.Brij Kumari, as can be manifested from the cancellation deed dated

1.9.1998 and the present objectors also in one way or the other purchased the property through Harjinder Kaur after the cancellation of the power of attorney on

1.9.1998, as such, it does not lie in the mouth of the present objectors that they are bonafide purchasers for valuable consideration, as it was also incumbent upon the present objectors also to have verified from the office of Sub Registrar regarding the validity of the power of attorney in favour of Harjinder Kaur and in the absence of that enquiry, it cannot be held that the present objectors are also bonafide purchasers for E.S.A.No.35 of 2009 4 valuable consideration without notice regarding the pendency of suit in between Brij Kumari and Prem Kumar. Thus, the sale deeds in favour of the present objectors are hit by the rule of lispendence. So since earlier also the objections so filed by Gurpreet Singh and others were dismissed as they were also claiming to have purchased the part of the property and now the present objectors are also claiming to have purchased the property for valuable consideration through sale deeds, but their objections cannot be held to be tenable and it simply seems that one or the other person wants to thwart the execution proceedings. As such, the objection petition so filed by Balwinder Kaur and others being not maintainable is hereby dismissed.” The aforesaid order was upheld by the first Appellate Court, vide order dated 21.3.2009.

8. The solitary argument of the learned counsel that since the appellants are bonafide purchasers and the plaintiff intends to take possession of the property, which was not the subject matter of the decree, so, the execution petition is liable to be dismissed, is not only devoid of merit but misplaced as well. The property has been duly described in the decree and the appellants are claiming themselves to be subsequent purchasers of the same through power of attorneys, which had already been cancelled. The executing Court, in the impugned order, has mentioned that Smt.Brij Kumari had cancelled the power of attorney and even cancellation deed was exhibited as Ex.DH/1.Once the original power of attorney was cancelled by the JD by cancellation deed (Ex.DH/1), then the subsequent purchases by the vendees would fall on its own legs and the vendees cannot possibly be saith to be bonafide purchasers in this relevant connection. Therefore, they have no locus standi to object to the execution of a decree, E.S.A.No.35 of 2009 5 which had already been passed as back as on 15.3.1995 and had also attained the finality. To my mind, the indicated objections have only been filed by the appellants for the limited purpose of delaying the execution of the decree and are without merit. Hence, the courts below, having considered the matter in right perspective, correctly dismissed the objections of the appellants, in the obtaining circumstances of the case.

9. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants.

10. In the light of the aforesaid reasons, the present appeal filed by the appellant-objectors is hereby dismissed. (Mehinder Singh Sullar) Judge

2.7.2010 AS