Heard Sri Vinay Khare, learned counsel for the appellant and Sri Anurag Pathak, learned counsel for the respondents.
On 21.07.2016, this appeal was heard and judgment was reserved noting the submissions of learned counsel for the parties as under:
"Heard Sri Vinay Khare, learned counsel for the appellant and Sri Anurag Pathak, learned counsel for the respondents.
This first appeal has been filed challenging order dated 13.09.2013 in Execution Case No.1 of 2012 passed by the court of Additional District Judge, Court No.5, Jalaun at Orai, whereby the application/ objection 21-C filed by the appellant, was rejected.
Learned counsel for the appellant submits that the appellant is wife of one Sri Amit Kumar and is living separately and as such, the decree dated 13.08.2003 on the basis of compromise dated 11.08.2003 cannot be executed against her in respect of disputed properties under Order XXI Rule 97, C.P.C. In support of his submissions, he relies upon judgments in the case of Meghraj Sah Vs. Rajansi Lal and others, AIR 1958 Patna 546 (paras-3 & 4), Babulal Vs. Raj Kumar and others, AIR 1996 SC 2050 (paras 4 & 5), Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 (para-5) and State of U.P. Vs. Mangilal Sharma, AIR 1998 SC 743 (paras-7 & 10). He also submits that the decree was not executable against the appellant even otherwise under Order XXI Rule 35, C.P.C. He further submits that the appellant cannot be evicted by way of execution of the decree in question.
Sri Anurag Pathak, learned counsel for the respondent submits that the appellant is an imposter and the objection being paper 21-C was filed by her in connivance with her husband who lost several round of litigation upto this court and thereafter, he had set up his wife, namely, the present appellant. He submits that the application/ objection 21-C was an abuse of process of court and, therefore, it was rightly rejected by the impugned order. He further submits that the impugned order has been passed by the court below in accordance with law and it does not suffer from any infirmity. He refers to several paragraphs of the counter affidavit and orders of this court passed in two writ petitions filed by the husband of the appellant. He relies upon a judgment of Karnatka High Court in the case of Gajanan Vs. Jayamma, , 2008 AIR (Karnatka) 11 (para-16) and the judgment of Bombay High Court in the case of Jagdish Motilal Joshi Vs. Chandrapal Tulsiram Bhola, 2007 (1) ALLMR 764 (para-17).
Judgment reserved."
I have carefully considered the submissions of learned counsel for the parties.
Briefly stated, facts of the present case are that the respondents No.2 & 3 are the mother and father of the respondents No.1, 4 & 5. Appellant is the wife of respondent No.4 and thus, daughter-in-law of respondents No.2 & 3. Fifth respondent Sri Anil Kumar Singh filed O.S. No.136 of 2000 to restrain the respondents No.1, 2, 3 and 4 from evicting him from the house property in question. The suit was contested by the parties but ultimately they entered into a compromise on 11.08.2003 and a decree in terms of compromise was passed on 13.08.2003 by the court of Additional District Judge, Fast Track Court-11, Jalaun at Orai in respect of the house property in question at Rajendra Nagar, Orai. According to the contesting respondents No.1, 2 & 3, all the respondents were put in possession in the respective portions but on legal advice an Execution Case No.61 of 2008 was filed by the respondents No.2 and 3 against the respondent No.4. The respondent No.4 filed an application under Section 151 C.P.C. in the aforesaid Execution Case for recall of the compromise decree. The application of the respondent No.4 (husband of the appellant) was rejected by the Additional District Judge vide order dated 27.08.2012. He challenged this order in Writ-C No.48402 of 2012 which was dismissed by order dated 25.09.2012 as under:
"Heard Sri Sushil Kumar Dubey, learned counsel for the petitioner. Sri Anurag Pathak has appeared for for respondents no. 2 to 5. Respondent no. 1 is represented by learned Standing counsel.
Respondent no. 2 Anil Kumar instituted a suit claiming share in the property of Shobha Singh being one of his sons. In the said suit a compromise was arrived at between the sons of Shobha Singh and the suit was decreed in terms of the compromise. Subsequently, petitioner applied vide application under Section 151 CPC for recall of the compromise decree on the ground that at the time of compromise he was not aware that respondent no. 2 was adopted by one Ranvir Singh and as such he has lost his right in the property of his natural father Shobha singh. The said application has been rejected by the impugned order dated 27.8.2012 passed by the Additional District Judge.
Challenging the said order only submission advanced is that at the time of passing of the compromise decree petitioner had no knowledge that respondent no. 2 was given in adoption. The compromise is not disputed. It has been signed by the petitioner. A decree on the basis of the compromise has been passed in his presence and upon hearing the petitioner. Therefore, the said order decreeing the suit no. 136 of 2000 on the basis of compromise can not be recalled.
In view of the above, the court below has not committed any mistake in rejecting the application. The remedy, if any, of the petitioner lies elsewhere and not by asking for recall of the decree.
Petition dismissed."
Thereafter, the husband of the appellant (respondent No.4 in the present appeal) filed some more applications in the Execution Case including an objection under Section 47 C.P.C. which were rejected. Then, he filed a Writ-C No.811 of 2014 challenging orders dated 21.10.2013, 19.03.2013, 24.05.2013 and order dated 06.07.2013. The aforesaid writ petition was dismissed by order dated 13.01.2014 as under:
"Heard Sri Anurag Sharma, learned counsel appearing for the petitioner. Sri Anurag Pathak has appeared for respondent no. 2.
It appears that suit no. 136 of 2000 was decreed on the basis of the compromise. Petitioner filed an application under Section 151 CPC for recall of the compromise decree and the said application was rejected and the order was upheld upto the High Court.
In pursuance of the said decree execution case no. 1 of 2012 has been initiated by Virendra Kumar Singh. In the said execution petitioner filed an application paper no. 27Ga-2 contending that the land on which the petitioner is having possession does not tally with the land in respect of which the suit was decreed. The said application has been rejected by one of the impugned orders dated 21.10.2013.
The executing court has held that in respect of the objections taken by the petitioner in the above application, the court has already taken decision earlier which has attained finality and therefore he can not be permitted to raise the identical objection again and again.
I find no illegality in the said order.
The aforesaid decree was also put in execution by Shobha Singh by means of Execution Case No. 61 of 2008. In the said execution petitioner raised objections under Section 47 CPC. The said objections have been rejected by order dated 19.3.2013. The said order is revisable and as such can not be permitted to be challenged directly by invoking the writ jurisdiction.
The third order which has been assailed by the petitioner in the order dated 24.5.2013 filed in Misc. case no. 10 of 2013 registered on the objection of the petitioner under Section 47 CPC. By the said order petitioner's application for summoning the original record of the suit has been rejected. It is purely an interlocutory order which does not adjudicate any rights of the parties and therefore requires no interference in exercise of writ jurisdiction.
The last order which has been impugned is the order dated 6.7.2013 which has been passed in Misc. Case No. 10 of 2013 rejecting the petitioner's application paper no. 25Ga to submit originals of the documents by which he has purchased the plot in dispute.
The submission of the originals of the documents in the execution is not necessary as the executing court can not go behind the decree. The verification/examination of the originals is the job of the court while hearing the suit. Therefore, filing of original is not necessary in execution.
In view of the above, there is no illegality in rejection of the aforesaid application also.
The writ petition is dismissed with the above observations."
It is also noteworthy that the respondent No.1 lodged an FIR against the appellant and the respondent No.4 on 25.11.2010 being Case Crime No.2235 of 2010 under Sections 379, 352, 448, 504, 506 I.P.C.
It is also relevant to note that after the husband of the appellant (respondent No.4) was unsuccessful as aforementioned, the appellant wife filed O.S. No.257 of 2013 for injunction against the contesting respondents. Her temporary injunction application 7-C-2 was rejected by the court of Civil Judge (S.D.) Jalaun at Orai by a detail order dated 30.10.2013.
During pendency of the aforesaid suit, the appellant filed an objection dated 24.07.2013 being paper No.21-kha in the Execution Case No.1 of 2012 claiming herself to be the owner of the disputed property by adverse possession. The objection was rejected by the impugned order dated 13.09.2013 passed by the court of Additional District Judge, Court No.5, Jalaun at Orai.
In the impugned order, the court below briefly discussed the facts and came to the conclusion that the appellant is abusing the process of the court and not allowing the execution of the decree on one ground or the other.
It is wholly undisputed that husband of the appellant (respondent No.4) holds a portion of the disputed property as owner in terms of the compromise decree dated 13.08.2003. Even if she has somehow occupied a portion of the disputed property, the same is based on the rights of her husband, namely, the respondent No.4 in the disputed property. The husband of the appellant filed several applications in the execution case so as to delay the execution of the decree but was unsuccessful upto the stage of the High Court. It is thereafter that the appellant filed O.S. No.257 of 2013 for injunction against the contesting respondents but her temporary injunction application being paper No.7-C-2 was rejected by the court of Civil Judge (S.D.), Jalaun at Orai by order dated 13.10.2013. The appellant also filed an objection in the execution case after rejection of multiple applications of her husband. The impugned order has been passed rejecting the objection of the appellant. All these facts clearly indicate that the court below has not committed any error of law or facts to come to the conclusion that the appellant has abused the process of the court and is making every effort on one ground or the other that the execution of the decree may not be proceeded. The appellant has no independent right in the disputed property. Her possession in the disputed property, at best, is based on the rights of her husband, namely, the respondent No.4.
The judgments relied by the appellant as aforenoted are on different set of facts and clearly distinguishable on the facts of the present case. In the case of Gajanan (supra), the Karnatka High Court held as under:
"16. Order 21 Rule 97 of CPC is applicable to only person who is claiming independent right, title and interest and not under the judgment debtor. The HRRP filed by the landlord against the dismissal of his case under Section 21(1)(h)(f) and (p) of the Rent Control Act, this Court in view of the provision of Section 70(2)(c) of the Rent Act had disposed of the HRRP. But as far as the relationship of the landlord and tenant arrived at by the HRC Court, is neither set aside nor the obstructer did challenge the said finding. If the obstructer is claiming under the judgment debtor, he has no right to maintain the application and in addition to this, though the obstructer alleges that the judgment debtor is not in talking terms with him, however the judgment debtor as well as the obstructer are represented by the same advocate, the Trial Court noticing the said fact held that these issues have already been decided and did not entertain the said application. Decree holder is fighting the litigation for eviction of tenant from 1990. Though the suit filed by the obstructer for declaration that he is tenant is dismissed and confirmed by this Court. The obstructer without having any independent right and being the son of the judgment holder debtor and having suffered findings in HRC case, is still resisting the decree. I do not find any justification to interfere with the order of the Executing Court. Accordingly, appeal fails and the same is dismissed."
In Jagdish Motilal Joshi (supra), the Bombay High Court held as under:
"17. The scope and nature of enquiry shall always depend on the nature of claim of source of title, which an objection pleads. Now on facts, this Court finds on showing by the objector that she has no independent status and enquiry of fact finding as to her status becomes wholly nu-necessary. On her showing, she is an imposter to be an objector in disguise. It can be concluded on the very face of it that the objector is et up by the judgment debtor. Even as an independent trespasser during the pendency of suit, the objector does not have a claim against a rightful claiming who has a decree in his favour. Law, equality or any other known or newly emerged doctrine do not come to the rescue of the objector respondent No.2 herein."
In both the afore-noted judgments, the Karnatka High Court and Bombay High Court have held that objector who has no independent right, does not have a claim against the person, who has a decree in his favour.
In view of the above discussion, I do not find any infirmity or any illegality in the impugned order. The appeal is totally devoid of merit and, therefore, deserves to be dismissed.
In view of the aforesaid, the appeal is dismissed with costs.
Order Date :- 11.08.2016 NLY