Dismissed

Krishan Chand Gupta v. Yogesh Kumar etc.

Punjab & Haryana HC3 Nov 2008CR/2530/2006

Case brief

AI extract

What is this about?

The High Court dismissed an execution application challenging a decree obtained in a specific performance suit. Upholding lower courts' view, the bench held that since the petitioner failed to raise objections during the trial and execution proceedings, and the decree was not a complete surprise, the current application constituted misuse of the court's process.

What did the court decide?

Application under Order 9 Rule 13 of CPC set aside and dismissed as abuse of process of court.

Krishan Chand Gupta Vs Yogesh Kumar… — Civil Procedure and Limitation | Punjab & Haryana HC (2008)

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CR No.2530 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.2530 of 2006

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Date of Decision: 3.11.2008

Krishan Chand Gupta

....Petitioner

Vs.

Yogesh Kumar & Anr. ..Respondents

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Coram: Hon'ble Mr. Justice Vinod K.Sharma

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Present: Mr.Arun Jain, Sr. Advocate, with Mr.Amit Jain, Advocate, for the petitioner.

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Mr.A.K.Chopra, Advocate, with Aashish Chopra, Advocate, for the respondents.

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Vinod K.Sharma,J. (oral)

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The petitioner has impugned the order dated 13.1.2005 passed by the learned trial court as affirmed by the learned lower appellate court dismissing the application moved by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure (for short the code).

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The petitioner filed an application under Order 9 Rule 13 of the Code on the plea that Civil Suit No.806 of 1993 titled Yogesh Kumar etc.

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CR No.2530 of 2006

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Vs. Krishan Chand etc. was decreed by the court of Shri Lalit Batra, the then learned Civil Judge (Sr.Division), Kurukshetra on 19.9.1998 on the basis of fictitious and fabricated agreement to sell regarding his land although no such agreement to sell was ever executed by him in favour of the plaintiffs nor any body was ever authorised by him to enter into any such agreement on his behalf. He denied the receipt of earnest money from the plaintiffs or through any person as mentioned in the agreement. It was also pleaded that fraud was played on the petitioner by wrongly suing him at a wrong address. He claimed that he was resident of United States of America and he never received any summons in the suit. It was also the case that the decree was obtained without serving summons upon him. The petitioner claimed that even in the execution application wrong address was given.

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The petitioner claimed that he came to India and inquired about the whereabouts of the suit property when it was revealed that the decree for specific performance has been passed regarding the suit land gifted by the applicant to Shri Vaish Aggarwal Panchayat, Thanesar and that the decree was executed without notice to him. The petitioner claimed that the suit was instituted regarding suit property by Shri Vaish Aggarwal Panchayat, Thanesar which was pending in the court of Shri D.N.Bhardwaj, learned Civil Judge (Jr. Divn.), Kurukshetra and that the appeal was pending in the court of Dr.B.B.Parsoon, learned Additional District Judge, Kurukshetra in which he had been made a party.

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The case of the petitioner is that on inspection of file it was revealed that the decree was passed against the petitioner by marking the

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presence of Shri R.G.Garg, Advocate on his behalf. Thus, it was claimed that ex parte decree was liable to be set aside.

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The application was contested on number of preliminary objections as regards the maintainability of suit, estoppel, res judicata and concealment of facts.

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On merit, it was asserted that the suit was decreed by the court of Shri Lalit Batra, learned Civil Judge (Sr. Division), Kurukshetra on the basis of an agreement to sell which was executed by Ved Pal for self and as general power of attorney of the applicant.

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Ved Pal had earlier filed a complaint at Pehowa regarding the agreement to sell. Said complaint was dismissed after recording evidence.

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Agreement to sell was found to be valid document and decree was passed. Address of the petitioner was same as that given in the agreement to sell as also as general power of attorney executed by him in favour of Ved Pal. It was claimed that Ved Pal was sued in his individual capacity and the petitioner was also represented through Shri Ved Pal as his attorney. It was claimed that the sale consideration deposited by the plaintiff/respondents was withdrawn according to the shares of the judgment debtors. It was claimed that the decree as well as general power of attorney were within the knowledge of the petitioner. It was admitted that a civil suit was filed by Shri Vaish Aggarwal Panchayat. However, it was pleaded that the same was not competent. The factum of pendency of appeal was admitted. It was claimed that as the petitioner was represented through attorney the decree was binding on him.

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The learned trial court observed that the petitioner was sued

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through Ved Pal general power of attorney being his attorney. Ved Pal has entered into an agreement on his own behalf and on behalf of the petitioner as general power of attorney. However, an attempt was made to get out of the contract by Ved Pal in making a statement that he ceased to be general power of attorney of the petitioner. However, as no document of cancellation of power of attorney was placed on record said plea was not accepted especially when counsel had appeared on behalf of both the defendants. Written statement was also filed on behalf of the respondents though signed by Ved Pal only. The court also observed that through out the proceedings Shri R.G.Garg was marked as present on behalf of both the defendants. However, no objections were raised. The learned trial court also observed that in view of the judgment of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Ramdas Shriniwas Nayak & another AIR 1982 SC 1249, that the record of the court is to be taken to be correct.

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The learned trial court also observed that in the general power of attorney as well as gift deed the address given by the petitioner was that of Thanesar and in no document he showed himself to be the resident of United States of America. The court also observed that nothing was brought on record to show the revocation of the general power of attorney. The court noticed that during the pendency of the present suit the petitioner executed gift deed of the suit land in favour of Shri Vaish Aggarwal Panchayat and thereafter he ceased to have any interest in the land.

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Even in the execution application objections were filed that Shri Vaish Aggarwal Panchayat is owner in possession of the suit land having received the same under two gift deeds. Said objections were

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dismissed. Shri Vaish Aggarwal Panchayat had also moved an application for setting aside the decree dated 19.9.1998 on the plea that the suit land was gifted by the petitioner to it and thus, it was claimed that they were necessary parties. Said application was allowed and Shri Vaish Aggarwal Panchayat, Thanesar was ordered to be substituted.

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This court observed that it cannot be said that the petitioner was not aware of the proceedings. The application was, thus, dismissed being misuse of the process of the court. The findings recorded by the learned trial court stand affirmed by the learned lower appellate court.

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Mr. Arun Jain, learned senior counsel appearing on behalf of the petitioner contends that in the present case the petitioner was admittedly not served and once statement was made that other defendants ceased to be the power of attorney holder it was incumbent upon the court to have issued the notice to the petitioner. The decree having been passed at the back of the petitioner was liable to be set aside.

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Mr. A.K.Chopra, learned counsel appearing on behalf of the respondents placed reliance on the judgments of this court in CR No.6242 of 2004 titled Vaish Aggarwal Panchayat (Registered), Thanesar Vs. Yogesh Kumar and Ors. decided on 21.11.2006 vide which revision petition filed by Shri Vaish Aggarwal Panchayat against the order rejecting their objections was ordered to be dismissed.

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After Shri Vaish Aggarwal Panchayat failed to get the decree set aside the petitioner has moved the present application which is not competent. It may be noticed that the present application was moved after Shri Vaish Aggarwal Panchayat, Thanesar failed in revision petition.

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Thus, the learned lower courts were justified incoming to the conclusion that the proceedings initiated were nothing but misuse of the

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process of the court.

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No merit.

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Dismissed.

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