Madhu Bala v. Virender Kumar & Anr.

partition simpliciter. In such a suit the High Court in course of execution proceedings ordered delivery of possession. Whether such a direction given in the suit is valid or not is a separate matter. We need not say anything more on the question at present. As noted earlier, the learned Single Judge and the Division Bench dismissed the petition filed by the appellants as non-maintainable without entering into the merits of the case. The Division Bench appears to have taken the view that since the appellants are claiming the property through the Pygah Committee or the State Government, who are parties in the suit, they are bound by the decree. The view taken by the Division Bench is unsustainable and does not at all stand scrutiny under law amounts to, if we may put it that way, begging the question raised in the petition filed by the appellants. At the cost of repetition, it may be stated here that the appellants are claiming independent title to the property as the transferees from the pattadars whose land did not vest in the State government under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Jagirdar Regulation Act, 1958. On a perusal of the orders passed by the Single Judge as well as Division Bench of the High Court, we are constrained to observe that the said order are based on a complete misreading of the case of the appellants and misconception of the legal position relevant to the matter. Considering the fact and circumstances of the case, we are of the view that the matter should be remitted to the High Court for fresh consideration of the petitions filed by the appellants by a Single Judge at the first instance.” The salient fact in that case was that the objectors had claimed that right in the property vested in them much prior to ESA No.36 of 2009 -4- the suit the decree of which was under execution. As noticed above, the present is not the situation in this case. Learned counsel for the appellant has further relied upon the decision of of this court in the case of Subhash Chander & another versus Smt. Phoolwati & others, reported as 2009(4) Civil Court Cases 151 and has placed reliance on particular para No.13 which is as follows: “Learned counsel has further submitted that the learned Courts below have committed an error of law while not framing appropriate issues while dismissing the objections observing that the objections filed by the appellants are frivolous having been filed with an ulterior motive to avoid execution of lawful decree. It is also submitted that an agreement to sell was executed by respondent No.8 in favour of respondent Nos. 1 to 6 on 4.6.1991 which was required to be executed by 4.4.1992, but respondent No.8 sold the property in dispute to the appellants on 20.12.1993 and the suit has been filed by respondent Nos. 1 to 6 on 4.4.1995, in which respondent No.8 did not participate and suffered an ex-parte decree in favour of respondent Nos. 1 to 6 knowing fully well that he had no sale-able right at that time as the property had already been sold by him to the appellants. It is also contended that this is a question which was required to be gone into by the executing Court while deciding objections under Order 21 Rule 97 of the CPC as a suit, therefore, the executing Court should have framed the relevant issues as to whether there was collusion between the Decree Holders and the judgment debtor and whether it is a case of fraud having been played by them upon the objector to ESA No.36 of 2009 -5- scuttle the sale deed executed by the judgment debtor in favour of the appellants.” It would be seen that that was a case where the objectors had purchased the property before the date fixed for execution of the sale deed and not a case where the brothers had suffered a decree in favour of unmarried sister as in the present case. Learned counsel for the respondent No.1 has relied upon the decision of a 3-Judge Bench of the Hon'ble Supreme Court titled as Silverline Forum Pvt. Ltd. vs. Rajiv Trust & another, reported as AIR 1998 Supreme Court 1754, particularly on para 12-13, which is as follows: “It is clear that Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed inquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the court deems it necessary.” In my opinion, the present case is fully covered by the decision of Hon'ble Supreme Court by Silverline Forum Pvt. Ltd. (supra). In this view of the matter, this appeal is dismissed with the clarification that the imposition of cost of Rs.10,000/- is ESA No.36 of 2009 -6- set aside. Since the main case has been decided, all the pending civil miscellaneous applications, if any stand disposed of. January 07, 2010 (AJAY TEWARI) JUDGE