Full Text
EX.P. 200/2009, EA Nos. 62/2010 (u/O 21 R-22&99), 63/2010 (for condonation of delay) & 434/2012 (u/O 21 R-32&58)
RAGHUNATH RAI & ANR ..... Decree Holder
Through: Mr. Mayank Goel & Mr. J.P. Singh, Advs.
Through: Mr. A.K. Hosley, Adv. for LR of JD-1.
10.05.2013
JUDGMENT
1. Execution is sought of the decree in a suit for specific performance of an Agreement of Sale of immovable property directing:
(i) execution of a Sale Deed in favour of the plaintiffs / Decree
Holders after obtaining permission / clearances from the authorities as may be required for conveying the title and delivery of possession of the property agreed to be sold to the plaintiffs / decree holders;
(ii) defendant no.2 to join the defendant no.1 in completing the sale, free from all encumbrances;
(iii) defendants to deposit the documents of title relating to the property in this Court;
(iv) plaintiffs / decree holders to deposit in this Court within one month, the balance sale consideration of Rs.1,00,000/-; and, EX.P. 200/2009 2013:DHC:2447
(v) upon the failure of the defendants to execute the Sale Deed and complete the sale, the sale thereof though the agency of the Court.
2. Notice of the execution petition was ordered to be issued to the judgment debtor and upon the judgment debtor failing to appear inspite of service, warrants of possession of the property, delivery of possession whereof was directed in the decree, issued and possession has been so delivered to the plaintiffs / decree holders.
3. The legal representatives of the judgment debtor have filed EA Nos.62-63/2010 objecting to the delivery of possession and seeking restoration of possession and for condonation of delay in applying thereof.
4. It is the contention of the legal representatives of the judgment debtor that the judgment debtor died on 18.02.2008 and the plaintiffs / decree holders who are residing in the same property were fully aware thereof but while filing this execution on 18.08.2009, filed the same against a dead judgment debtor and the execution is thus bad and the possession ought to be restored to them. The counsel for the legal representatives of the judgment debtor has argued that the execution against a dead judgment debtor was a nullity.
5. The counsel for the decree holder has handed over in the Court the judgment dated 20.04.2011 of the Division Bench of this Court in Cont.Cas. (Crl.) No.3/2010 filed by the legal representatives of the judgment debtor against the plaintiffs / decree holders on the same facts and which was dismissed inter alia observing that no notice even of the execution petition was required to be issued. It is stated that the said judgment has attained finalityandinthelightthereofthesaidobjectiondoesnotarise.
6. The counsel for the legal representatives of the judgment debtor has not argued anything in opposition on the said aspect.
7. I may even otherwise state that the principle applicable to suits, of a suit against a dead person being a nullity is not applicable to execution. The Supreme Court in V. Uthirapathi Vs. Ashrab Ali (1998) 3 SCC 148 held that penalty of abatement does not attach to execution proceedings and execution petition remains pending on the file of the executing court notwithstanding the death of the judgment debtor and non substitution / impleadment of his heirs and cannot be dismissed as abated. Reference in this regard can also be made to judgments of this Court in Thakur Bai Vs. Laxmi Chand AIR 1990 Del. 217 and The Board of Trustees of The Port of Bombay Vs. M/s A. Kumar & Co. MANU/DE/1617/2003. Reference can also be made to N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail AIR 1966 SC 792 where execution petition against a wrong person as legal representative, if bona fide was held to be not bad and to Mahadeo Vs. Shantilal AIR 1957 Bom. 170 and Sarat Chandra Vs. Bichitrananda AIR 1951 Orissa 212, Gnanambal Ammal Vs. Veerasami Chetti AIR 1916 Mad. 1022, Shunmugham Chettiar Vs. K.A. Govindasami Chettiar AIR 1961 Mad. 428 to the same effect. It is also significant to mention that Section 50 of the Civil Procedure Code uses the expression “may” while permitting execution against the legal representatives. It is also worth mentioning that the decree in the present case was with respect to a property and not personally against any legal representative and for this reason also the filing of the executioninthenameofthedeceasedjudgementdebtorhas not affected the legal representative in any manner whatsoever. Reference in this regard can also be made to Balwant Singh Vs. Manak Mal AIR 1959 Raj. 91 also laying down that execution application against a deceased judgment debtor is not a nullity.
8. There is thus no merit in the said objection which is dismissed.
9. On the last date of hearing i.e. 01.05.2013, the Registry was directed to report whether the plaintiff had deposited the sum of Rs.1,00,000/- in terms of the decree as directed. It is reported that the said sum of Rs.1,00,000/- was deposited on 29.07.1999 i.e. within one month of the decree dated 16.07.1999.
10. There is no other objection now to execution of the decree by directing the execution of the Sale Deed in favour of the plaintiffs / decree holders.
11. The counsel for the plaintiffs / decree holders states that the defendant no.2 was the Punjab National Bank (PNB) in whose favour the deceased defendant no.1 was claiming to have created equitable mortgage with respect to the property but which claim was subsequently found to be false and thus the sale is now to be executed by the legal representatives of the deceased defendant no.1 / judgment debtor only and all three of whom are on record.
12. The counsel appearing for the legal heirs of the judgment debtor however states that he has the authority only from one of the legal heirs viz. Mr. Sunil Sharma and the said Sh. Sunil Sharma is willing to join in the execution of the said Sale Deed in compliance of the decree.
13. The plaintiffs / decree holders have also filed IA No.434/2012 averring that as per the Agreement to Sell, the property tax and other charges till the date of delivery of possession were to be borne by the seller i.e. the judgment debtor but the plaintiffs / decree holders have paid approximately Rs.69,000/- on account of said house tax and electricity Bills and seeking adjustment thereof out of the sum of Rs.1,00,000/- lying deposited in this Court.
14. However on request of the Court, the counsel for the plaintiffs / decree holders has fairly not pressed the said relief. The said request has been made since the amount of Rs.1,00,000/- remained in CCD account only which is a non interest bearing account.
15. The execution petition is disposed of with the following directions;
(i) The plaintiffs / decree holders to within two weeks file a draft
Sale Deed to be executed by the personnel of this Court on behalf of the legal representatives of the judgment debtor for approval of the Joint Registrar;
(ii) Sh. Sunil Sharma, legal representative of the judgment debtor would be entitled to join in the execution of the said Sale Deed.
(iii) The Sale Deed else on behalf of the legal representatives will be executed by Mr. Javed Khan (Mob.9958125170), Court Master / Court Commissioner on any Saturday and got registered at the concerned Sub Registrar.
(iv) The fee of the Court Commissioner is fixed at Rs.15,000/besides out of pocket expenses to be borne out by the plaintiffs / decree holders.
16. The counsel for the legal representative namely Shri Sunil Sharma of the judgment debtor states that the original documents are not in his custody and are with the PNB only.
17. The execution petition is disposed of.
18. The decree holder to appear before the Joint Registrar for approval as aforesaid of the draft Sale Deed on 27th May, 2013. After the Sale Deed has been approved, the stamp duty for the same be purchased and the Sale Deed engrossed on the said stamp paper be executed as aforesaid.
RAJIV SAHAI ENDLAW, J MAY 10, 2013 „gsr‟