Heard Shri M.A.Qadeer, learned senior counsel assisted by Shri S.K. Mehrotra and Shri M.H. Qadeer, learned counsel for the appellant and Shri Kshtij Shailendra, learned counsel who has appeared for contesting respondent through Caveat at the admission stage.
Respondent no.1, Girwar Das Gujrati (G.D.Gujrati) filed a suit for specific performance of an agreement for sale executed in the year 1969 by Jaggan Nath and for possession. The defendants in the suit were Babu Ram Chauhan (respondent no.2 in this second appeal), Ram Chandra and Subodh Chandra son of Ram Chandra, respondent no.3 in this Second Appeal. Ram Chandra appears to have died. Babu Ram was legal representative of Jaggan Nath. In the suit it was claimed that Babu Ram was legal representative of Jaggan Nath, however, Ram Chandra and his son Subodh Chandra were also claiming to be descendants of Jaggan Nath hence they were being impleaded as defendants.
The suit for specific performance and for possession was decreed. First Appeal was dismissed. Second appeal was dismissed and Special Leave Petition was also dismissed by the Supreme Court. Thereafter appellant Vijay Bahadur who was not party in the suit filed application under Section 151 C.P.C. which was threatened to be under Order 21 Rule 97 to 102 C.P.C. claiming that he was in possession of the property in dispute in his independent right and he was wrongly being treated to be dis-possessed in execution of the decree of Original Suit no.157 fo 1973. The application was registered as Misc. Case No.2 of 1995 and was rejected on 2.3.2009 by Additional Civil Judge, (Senior Division)/JSCC, Moradabad. The said order amounted to decree hence Civil Appeal No. 91 of 2011 was filed against the same which was dismissed on 26.11.2011 by Additional District Judge, Court No.11, Moradabad hence this Second Appeal.
The applicant in his application numbered as 3 ga filed on 2.1.1995, copy of which is Annexure-2 to the affidavit filed in support of stay application in this Second Appeal stated that he was in possession for 22 years and on 5.12.1994 when Advocate Commissioner reached the spot for delivery of possession pursuant to the decree passed in O.S. no. 157 of 1973, the applicant came to know about the same. It was also stated in the application that the plaintiff/applicant in execution had admitted that the appellant-applicant was in possession. Plaintiff-respondent no.1/applicant in the execution filed objection stating therein that the applicant-appellant was sister's son of Subodh Chandra, respondent no.3 in this Second Appeal who was one of the defendants in the suit of 1973 and he alongwith his mother was residing in the house in dispute being sister and sister's son of Subodh Chandra and he had been set up by Subodh Chandra. Appellant did not deny that he was sister's son of Subodh Chandra. Accordingly, application was rejected on 2.3.2009. Lower Appellate Court held that in the application filed on 3.1.1995 applicant stated that he was in possession for 22 years i.e. from 2.1.1973 however, appellant stated that he for the first time obtained possession on 1.7.1973 treating that to be his ancestor's property.
In this Second Appeal on inquiry from court that in what manner possession was obtained by the appellant, learned counsel for the appellant stated that the house was lying vacant and un-cared of, hence, appellant walked in. This is such a fantastic plea that no one can believe it.
Learned counsel for the appellant has referred to the definition of judgment debtor as provided under Section 2(10) CPC. Learned counsel for the appellant has further referred to Order 21 Rule 98(2) C.P.C. and has argued that appellant is basing its claim neither at the instigation of the judgment debtor nor on his behalf nor he is transferee from judgment debtor.
In my opinion the courts below very rightly held that the appellant has absolutely no independent concern with the property in dispute and he was objecting only and only on behalf of Subodh Chandra, respondent no.3 who was his maternal uncle. The findings of fact recorded by the courts below in this regard are based on the entire material on record. The mother of the appellant examined herself as witness in Original suit no.167 of 1973 and stated that in 1972 she started residing alongwith her brother Subodh Chandra eight days before Diwali.
Accordingly there is absolutely no merit in this Second Appeal. The application was utter abuse of the process of court. However, it is disturbing to note that decree for specific performance and possession which had been confirmed by the Supreme Court could not be executed for 16 years due to extremely frivolous application. The trial court by granting temporary injunction actually stayed the decree approved by the Supreme Court.
The court is restraining itself from passing any stricture against the learned Judge who granted temporary injunction on the application of the appellant and against those subsequent learned presiding officers of the said court who kept a frivolous application pending for 14 years. District Jduge, Moradabad is directed to ensure that in future such applications do not take more than six months or by maximum one year to decide.
There is absolutely no merit in this Second Appeal hence it is dismissed under Order 41 Rule 11 C.P.C.
Office is directed to send a copy of this order to the District Judge, Moradabad.
Order Date :- 23.12.2011 RS