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17th October, 2014 SHRI DHARAM SINGH ......Appellant
Through: None.
Through: Mr. R.S. Sahni, Advocate for respondent No.2.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
Caveat No.921/2014
JUDGMENT
1. Counsel appears for the caveator and thus the caveat stands discharged. C.M. No.17304/2014 (exemption)
2. Exemption allowed subject to just exceptions. C.M. stands disposed of. + Ex.F.A. No.30/2014 and C.M. No.17305/2014 (stay)
3. At the first call, pass over was granted making it clear that on 2014:DHC:5434 the second call, no further accommodation will be granted. In spite of this, no one appears for the appellant.
4. This execution first appeal is filed against the impugned judgment of the executing court dated 9.10.2014 which has allowed objections filed by respondent no.2, estranged estranged wife of the respondent no.1, observing that the consent decree which was taken by the appellant/plaintiff/plaintiff was only against the respondent no.1/defendant no.1/son and to which consent decree the objector/defendant no.2/daughterin-law of the plaintiff/wife of the respondent no.1 was not a party. Trial court also observed that a decree cannot be executed against a defendant against whom case is not proved and since consent decree was obtained only between the appellant/plaintiff/father and the respondent no.1/defendant no.1/son, in execution of the same, the respondent no.2/objector could not have been dispossessed.
5. It is trite that a decree is only binding against parties to the decree i.e if there are more than one defendant and a consent decree is obtained against one defendant, that decree cannot be executed against the other defendant, because, that will amount to playing fraud against the defendant no.2, inasmuch as possession will be taken from the defendant no.2/respondent no.2 in execution of a decree which is not passed against her. Execution of a decree in such a case will also be an endeavour to overreach the process of the court. Respondent no.2 was admittedly not a party to the consent decree dated 16.4.2014 (consent statement recorded on 18.3.2013). I may also note that the executing court records that respondent no.2 was in possession of the suit property and she was thrown out only on account of execution of a consent decree i.e the objector/respondent no.2 was in possession and possession has been obtained from respondent no.2/defendant no.2 although only in execution of the decree and although there was no decree against the respondent no.2/defendant no.2.
6. Dismissed.
OCTOBER 17, 2014 VALMIKI J. MEHTA, J. Ne