Dismissed

Smt. Hema Daughter of Shri Gopaldas Moolchandani, v. Maanmal Lodha Son of Shri Gumanmal Lodha

Rajasthan HC6 Mar 2024CSA/101/2024

Case brief

AI extract

What is this about?

Second appeal by an objector resisting execution of a possession decree, having bought the property from the judgment-debtor after decree. Court held Rule 102 Order XXI CPC barred her objection, found proceedings abusive and collusive, and dismissed the appeal for want of a substantial question of law.

What did the court decide?

None granted; second appeal dismissed.

Smt. Hema Daughter of Shri Gopaldas Moolchandani… — Execution and Attachment | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 101/2024

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Smt. Hema Daughter Of Shri Gopaldas Moolchandani, Aged About 58 Years, Resident Of Opposite Kali Mai Temple, Foysagar Road, Ajmer.

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----Appellant/Objector/Applicant

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Versus

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Maanmal Lodha Son Of Shri Gumanmal Lodha

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Amit Kumar Lodha Son Of Shri Maanmal Lodha

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Naveen Kumar Lodha Son Of Shri Maanmal Lodha

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Kumari Monika Lodha Daughter Of Shri Maanmal Lodha

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Smt. Monu Karnawat Wife Of Shri Mukesh Kumar Karnawat And Daughter Of Shri Maanmal Lodha All Resident Of House No. 38 V, Kirti Nagar, Foysagar Road, Ajmer.

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----Respondents/Decree-holder/Plaintiff

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Dilip Kuamr Chainani Son Of Shri Jeevat Ram Chainani, Resident Of House No. 529/2, Near Kawadiya Medical Store, Ramnagar, Ajmer.

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----Respondent/Defendant

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For Appellant(s) : Mr. Ashish Kishore Saksena For Respondent(s) :

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Judgment / Order

REPORTABLE

06/03/2024

Instant second appeal is preferred by the appellant-objector aggrieved from the order dated 09.11.2023 in Civil Appeal No.47/2018 passed by learned Additional District Judge No.3, Ajmer, whereby appeal was preferred by appellant-objector, who was aggrieved from order dated 31.08.2018 in Misc. Case

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No.7/2018 by learned Additional Senior Civil Judge No.3, Ajmer was dismissed, wherein by order dated 31.08.2018 petition under Order XXI Rule 97 to Rule 100 CPC and application under Section 151 CPC was dismissed at a cost of ₹10,000/-.

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Learned counsel for appellant while relying upon his application under Order XXI Rule 97 to Rule 100 CPC has submitted that the objector has raised substantial question regarding execution of decree in Civil Execution No.5/2013 arising out of judgment and decree dated 11.02.2012 in Civil Suit No.80/2003 passed by learned Additional Senior Civil Judge No.3, Ajmer but the trial Court instead of framing issues and deciding the objection like a civil suit has adopted a short cut process and without any inquiry has dismissed the application. He further submitted that the grounds raised by present appellant clearly indicate that the description of property in Civil Suit No.80/2003 (61/2002) (copy of plaint is filed by the appellant) does not match with the property of present appellant-objector (claimed by her), therefore, when the description is different then it is duty of the trial Court to conduct an inquiry into the claim and adjudicate on the issue raised by present appellant. He also submitted that the possession warrant issued by the executing Court in pursuant to decree dated 11.02.2012 also indicates that when sale-ameen visited the place to execute the warrant then in grab of said warrant he tried to dispossess tenant of present appellant. He also submitted that the property for which decree was passed, was a different property and after getting a possession warrant plaintiff wants to acquire property of present appellant-objector. He also submitted that it was legal duty of the trial Court and also of

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Appellate Court to consider the objections after affording an opportunity of leading evidence to the appellant. He relied upon the judgment of Hon’ble Supreme Court in case of Jini

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Dhanrajgir and Ors. Vs. Shibu Mathew and Ors. MANU/SC/0583/2023 (Civil Appeal No.3758-3796/2023) and submitted that under Order XXI, Rule 97 to Rule 106 CPC, the resistance/objections by a third party have to be adjudicated as per procedure provided under the Code. He further relied upon judgment of Hon’ble Supreme Court in case of Sriram Housing

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Finance and Investment India Ltd. Vs. Omesh Mishra Memorial Charitable Trust MANU/SC/0819/2022 (Civil Appeal No.4649/2022) and submitted that objection by a third person in execution of decree is required to be determined under Rule 97 and Rule 99 subject to Rule 101 of CPC. At last, he submitted that the trial Court and the Appellate Court both have committed serious error while dismissing the objection petitions on threshold without affording opportunity of evidence to the appellant. He also pointed out that the substantial questions of law are suggested for determination of this Hon’ble Court, therefore, the appeal be admitted on substantial questions of law as suggested by appellant.

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Heard learned counsel for appellant and perused the material available on record. Also considered the judgment as referred by learned counsel for appellant.

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Instant appeal is filed under Section 100 of CPC by the appellant aggrieved from order dated 09.11.2023 in Civil Appeal No.47/2018. A perusal further indicate that initially application under Order XXI Rule 97 to Rule 100 CPC was filed by the

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appellant objecting the execution of judgment and decree dated 11.02.2012 in Civil Suit No.80/2003 (61/2002). Along with this application, another application under Section 151 CPC was also filed. The trial Court has disposed of both the applications by order dated 31.08.2018 and imposed a cost of ₹10,000/- as these applications were found frivolous. Aggrieved from aforesaid, an appeal was preferred and same was also dismissed on 09.11.2023 by learned Additional District Judge No.3, Ajmer.

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Section 100 of CPC provides that an appeal shall lie to the High Court from every decree passed in appeal by any Court Subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. No decree was prepared by the first Appellate Court while disposing appeal on dated 09.11.2023.

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Since, the matter pertains to resistance or obstruction in the execution, therefore, we have to consider the provisions relating to resistance or obstructions as provided under Order XXI CPC. Rule 97 of Order XXI CPC provides that when the holder of a decree for the possession of immovable property or purchaser of any such property sold in execution of a decree is resisted or obstructed by any person objecting possession of the property, he may make an application to the Court complaining of such resistance or obstruction. After filing of such application the Court shall proceed to adjudicate upon the application in accordance with the provisions as contained in the Code.

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In case of Shreenath & Anr. Vs. Rajesh & Ors. reported in AIR 1998 SC 1827 it was held that a third party in possession of a property claiming independent right of a decree for possession

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of immovable property under the execution could resist such decree by seeking adjudication of his objection under Order XXI Rule 97 of CPC. The objector and third party need not have to file a fresh suit but all matters pertaining to that property shall be adjudicated in the execution proceedings. This judgment was further relied in case of Shamsher Singh & Anr. Vs. Lt. Col. Nahar Singh (D) Thr. LRs. & Ors. reported in AIR 2019 SC 4840 wherein judgment in case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Anr. reported in 1998 (3) SCC 723 was also relied.

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Rule 101 of Order XXI provides that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose. Rule 102 of Order XXI provides that nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgement-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

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The fact of the matter in the instant case are that plaintiff instituted a civil suit against Dilip Kumar Chainani S/o Jeevat Ram Chainani for recovery of possession of a rented shop situated in House No.529, Ward No.2 given vide rent-note dated 09.02.1996. This civil suit was decreed on 11.02.2012. According to facts available on record a first appeal under Section 96 was preferred

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by Dilip Kumar Chainani and same was disposed of by learned Additional District Judge No.2, Ajmer on 06.04.2016. Aggrieved from dismissal of first appeal, Dilip Kumar Chainani has filed a S.B. Civil Second Appeal and same was also dismissed on 02.07.2018.

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A pertinent fact mentioned by learned Appellate Court in order dated 09.11.2023 indicating that Dilip Kumar Chainani on 06.01.2014 had executed a sale-deed in favour of his wife Hema. The Appellate Court considered this fact and ruled that the provision of Rule 102 of Order XXI CPC are not applicable in the instant case.

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A perusal of objection petition indicates that the objector Smt. Hema filed the objection claiming her title as daughter of Gopaldas but not as wife of Dilip Kumar Chainani, which is more than enough to doubt the bonafides of appellant-objector Hema. The trial Court considered this issue, wherein on the basis of agreement to sale, power of attorney and will, judgment debtor Dilip Kumar Chainani claimed ownership of suit property and further transferred the suit property through registered sale-deed to his wife Hema on 06.01.2014. Herein, a decree was passed in favour of the decree holder by the trial Court and upheld by first Appellate Court and also by the Second Appellate Court. Thus, the decree has attained finality.

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In execution proceedings no.5/2013 when warrant of possession under Order XXI Rule 35 CPC was issued against Dilip Kumar Chainani and on 22.01.2018, when sale-ameen visited the place then he found that an Advocate (Lawyer Sneh Kant Visariya) was occupying the suit premises and he resisted the possession

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warrant. A compromise decree dated 09.12.2017 in case of Sneh Kant Vs. Hema by Lok Adalat was also shown to sale-ameen.

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The fact narrated in order dated 31.08.2018 indicated that the objector-appellant has claimed a right on the basis of a saledeed executed on 06.01.2014. The judgment and decree dated 11.02.2012 clearly indicated that the judgment-debtor is Dilip Kumar Chainani, husband of the objector-Hema, and after decree dated 11.02.2012, the sale-deed was executed on 06.01.2014, therefore, under Rule 102 of Order XXI CPC is applicable. In case of Jini Dhanrajgir and Ors. Vs. Shibu Mathew and Ors. (supra) a judgment in the case of Usha Sinha Vs. Dina Ram & Ors. reported in 2008 (7) SCC 144 was referred wherein Hon’ble Supreme Court held that a pendente lite purchaser had no right to offer resistance or cause obstruction as the purchaser right had not been crystallized in a decree.

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In case of Jini Dhanrajgir and Ors. Vs. Shibu Mathew and Ors. (supra) Hon’ble Supreme Court has considered several judgments including Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Anr. (supra) and also Rule 98, 100 and 102 of Rule XXI CPC and opined that in case of any objection by any objector or third party during the execution of a decree, the process as provided under the law has to be followed according to Rule 102 of Order XXI, the provision would not apply to the resistance or obstruction in execution of decree for the possession of immovable property by a person to whom the judgment-debtor transferred the property after the institution of the suit in which decree was passed.

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Above mentioned clearly indicated that a lawyer in connivance with wife of judgment-debtor (present appellant) and judgment-debtor not only resisted the possession warrant but indulged in obtaining collusive decree by way of compromise. 16. In case of Sriram Housing Finance and Investment India Ltd. Vs. Omesh Mishra Memorial Charitable Trust

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(supra), while considering the Rule 98, 100 and 102 of Order XXI CPC, Hon’ble Supreme Court has considered the issue and upheld that in an application filed under Rule 97 or Rule 99 of Order XXI CPC by any objector, the executing Court has no occasion to frame issue and direct the parties to lead evidence on objection. Further, upheld the setting aside of order of the Executing Court by the High Court as the Executing Court transgressed the scope of Order XXI CPC.

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Having considered the judgments as referred by the appellant and the material available on record, I am of considered view that the entire proceedings from objection petition to instant second appeal are abuse of the process of law by present appellant. Moreover, the facts indicated in the order of trial Court and the Appellate Court also confirms that how a conspiracy was fetched between Dilip Kumar Chainani, Hema and Sneh Kant to grab the property of decree holder. The trial Court has rightly imposed cost of ₹10,000/- while dismissing the application.

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Herein, two issues were raised firstly identical property and non-adjudication of objections but from the facts narrated from the order dated 31.08.2018 and order dated 09.11.2023, it is clearly established that after decree dated 11.02.2012, Dilip Kumar Chainani had sold the property to Hema, who executed a

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rent-note in favour of lawyer Sneh Kant Visariya, therefore, in view of Rule 102 of Order XXI CPC, Smt. Hema has no right to file any objection or resists the decree dated 11.02.2012 on any count. Thus, there is no substantial question of law, which requires to be adjudicated. Both the judgments as referred by learned counsel for appellant are not applicable in favour of appellant.

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In view of aforesaid, there is no substantial questions of law that require adjudication, hence, the second appeal is liable to be dismissed.

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As a result, instant second appeal is hereby dismissed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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Arun/38

Smt. Hema Daughter of Shri Gopaldas Moolchandani, v. Maanmal Lodha Son of Shri Gumanmal Lodha

Case brief

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Smt. Hema Daughter of Shri Gopaldas Moolchandani, v. Maanmal Lodha Son of Shri Gumanmal Lodha

Case brief

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