Raghunath Singh v. Satish Chand

58. Adjudication of claims to, or objections to attachment of, property. – (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained— (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, the title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,— pendency of the suit, he had surrendered possession of the suit property to Raghunath Singh.

13. In view of the said submission, the learned ADJ dismissed Execution Civil 1267/2017 by judgment dated 15 February 2018, holding that as possession of the suit property was no longer with Raj Kumar, the decree could not be executed against him.

14. Aggrieved thereby, Satish Chand moved this Court by way of Ex. FA 19/2018 (Satish Chand v. Raj Kumar).

15. Said appeal was decided by a Coordinate Single Bench of this Court by judgment dated 17 September 2018. Paras 17 and 21 to 24 of the judgment are relevant and may be reproduced thus:

24. Though the law is absolutely clear and no precedent is required but since the Additional District Judge, notwithstanding the same has dismissed the execution, it is also deemed appropriate to refer to Silverline Forum Pvt. Ltd. Vs. Rajiv Trust[3] holding that if the resistance to the execution is made by transferee pendente lite of the judgment debtor, the scope of adjudication under Rule 101 of Order XXI[4] of the CPC would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point, the Execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 1025; it was further held that exclusion of such a transferee from raising further objection is based on the salutary principle adumbrated in Section 526 of the Transfer of Property

101. Question to be determined. – 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, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

102. Rules not applicable to transferee pendente lite. – 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 judgment-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. Explanation. – In this rule, “transfer” includes a transfer by operation of law.

52. Transfer of property pending suit relating thereto. – During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation. – For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. Act. In Usha Sinha Vs. Dina Ram[7] it was further held that a transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law and that Rule 102 of Order XXI of the CPC takes into account the ground reality and refuses to extend a helping hand to purchasers of property in respect of which litigation is pending. It was reasoned that if unfair, inequitable or undeserved protection is afforded to a transferee pendent lite, a decree holder will never be able to realize the fruits of his decree and every time the decree holder seeks a direction from a Court to execute the decree, the judgment debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction; to avoid such a situation, Rule 102 of Order XXI of the CPC has been enacted.”

16. Nonetheless, in para 26, this Court deemed it appropriate, while setting aside the order dated 15 February 2018 passed by the learned ADJ which dismissed Execution Civil 1267/2017, and remanding the said execution petition for de novo consideration, to direct notice to be issued to the appellant Raghunath Singh to ascertain whether he had any independent claim in respect of the suit property.

17. Notice was accordingly issued to the appellant by the learned ADJ. As the appellant had expired, his widow and six daughters filed objections to the judgment and decree dated 19 November 2016 under Order XXI Rule 58 of the CPC on 11 March 2020. Paras 7 to 10, 13 and 15 to 20 of the objections may be reproduced thus:

18. Vide order dated 22 April 2022, the learned ADJ observed and held, in paras 9 to 17, thus:

19. Satish Chand filed an application under Order XLVII Rule 18 of the CPC seeking review of the order dated 22 April 2022 supra of the learned ADJ. That application has been allowed by the impugned order dated 16 August 2023, paras 10, 11 and 12.[2] of which read as under:

20. Aggrieved by the said order, Raghunath Singh, who is undisputedly the landlord of the suit property, has preferred the present appeal before this Court.

21. I have heard Mr. Ramesh Kumar Jain, learned Counsel for the appellant and Mr. J.K. Jain, learned Counsel for the respondent.

22. Learned Counsel for the appellant submits that the impugned order travels far beyond the limited confines of review jurisdiction as conferred by Order XLVII of the CPC.

23. The learned ADJ has, in his submission, effectively sat in appeal over the judgment of his predecessor. He submits that the learned ADJ was perfectly justified in observing that the rival contentions required to be tested on evidence and, therefore, relegated the parties to trial. He submits that the order dated 22 April 2022 was in fact passed ad invitum against Satish Chand, who chose not to implead the appellant in the suit instituted by him against Raj Kumar. He further submits that it was the appellant’s clear and categorical case that he had never inducted Satish Chand as a tenant in the suit property and that Raj Kumar had remained his tenant from the beginning. He also disputes the appellant’s claim of having been in possession of the suit property at any point of time.

24. Learned Counsel further contends that, in the absence of proof of possession, there could be no question of any relief being granted under Section 6 of the Specific Relief Act. All these facts, he submits, were rightly noted by the learned ADJ as requiring a trial and leading of evidence, so that there was no occasion, even on merits, for the order dated 22 April 2022 of the learned ADJ to be reversed in review jurisdiction.

25. In support of his submission that the impugned order travels beyond the confines of review jurisdiction, Mr. Jain relies on the judgment of the Supreme Court in Sanjay Kumar Agarwal v. Sales Tax Officer[9].

26. Mr. J K Jain merely reiterates the reasoning contained in the impugned order which, he submits, does not brook interference. Analysis

27. Having heard learned Counsel and perused the material placed on record, I do not find that any case for interference with the impugned order dated 16 August 2023 of the learned ADJ exists.

28. It is true that the scope of review jurisdiction is limited. A review court cannot sit in appeal over the decision under review. The scope of review jurisdiction has thus been authoritatively delineated by the Supreme Court most recently in Sanjay Kumar Agarwal, on which learned Counsel for the appellant relies:

(vi) Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.

(vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

(viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review.”

29. However, it is equally true that, if the decision under review suffers from any error apparent on the face of the record, a case for interference in review jurisdiction is certainly made out.

30. The scope of the expression “error apparent on the face of the record” is not apparent from the CPC and, indeed, as far back as in Hari Vishnu Kamath v. Ahmad Ishaque10, a bench of seven Hon’ble judges of the Supreme Court held that “what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, AIR 1955 SC 233 and it must be left to be determined judicially on the facts of each case”. In S. Bagirathi Ammal v. Palani Roman Catholic Mission11, the Supreme Court held: “12. An error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. Under the guise of review, the parties are not entitled to rehearing of the same issue but the issue can be decided just by a perusal of the records and if it is manifest can be set right by reviewing the order. With this background, let us analyse the impugned judgment of the High Court and find out whether it satisfies any of the tests formulated above. *****

26. As held earlier, if the judgment/order is vitiated by an apparent error or it is a palpable wrong and if the error is selfevident, review is permissible and in this case the High Court has rightly applied the said principles as provided under Order 47 Rule 1 CPC. In view of the same, we are unable to accept the arguments of learned Senior Counsel appearing for the appellant, on the other hand, we are in entire agreement with the view expressed by the High Court.” In a challenge to an order passed by the Central Administrative Tribunal refusing to correct what was contended to be an error apparent on the face of the record, the Supreme Court in Surjit Singh v. UOI12 returned the following clearly critical observations: “7. In the light of these directions, it is obvious that the Government of India had prepared the seniority list. The contention of the promotees which was found acceptable to the Tribunal that preceding the date of amendment the Government was devoid of power to carry forward all unfilled vacancies to the direct recruits and that all these vacancies are meant to be thrown open to the promotees, is clearly a misinterpretation of the rules and on that basis the directions came to be issued by the Tribunal. This Court had suggested on earlier occasion that vacancies meant for the direct recruits may be carried forward for two years after the recruitment year and thereafter the unfilled vacancies would be thrown open to the respective cadres. Under these circumstances, the view of the Tribunal is clearly illegal; unfortunately, the Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the Tribunal is duty-bound to correct, with grace, its mistake of law by way of review of its order/directions.”

31. The impugned order essentially relies on the findings of this Court in its judgment dated 17 September 2018 in Ex. FA 19/2018 to hold that the order dated 22 April 2022 suffered from an error apparent on the face of the record.

32. The issue before this Court is whether the impugned order dated 16 August 2023 trespasses the boundaries of review jurisdiction as conferred by Order XLVII of the CPC.

33. Having perused the order dated 22 April 2022, vis-à-vis the judgment dated 17 September 2018 passed by this Court in Ex.FA 19/2018, I find myself in agreement with the learned ADJ, and I may straightaway say why.

34. The learned ADJ has not, in the impugned order dated 16 August 2023, dismissed the appellant’s objection. He has merely reviewed the earlier order dated 22 April 2022 of his predecessor to the extent it directed the parties to lead evidence and, therefore, reignited the trial. This, according to the impugned order, was palpably erroneous. The view is unexceptionable. In passing the order dated 22 April 2022, the learned ADJ overlooked the observations – nay, findings – contained in the judgment dated 17 September 2018 of this Court in Ex. FA 19/2018. This Court, in unequivocal terms, and, by placing reliance on Section 52 of the Transfer of Property Act and Order XXI Rule 101 and 102 of the CPC, held that the induction of a third party – even if he were the landlord – in the suit premises when the suit was pending, without leave of the Court, was impermissible and that, if such a third party were inducted, he would have to abide by the decree and could not defeat the execution proceedings. More than once, this Court has emphasized that it is only if such third party could establish an independent right in respect of the suit property that he would have any locus to obstruct the execution. Inasmuch as an objection under Order XXI Rule 58 has to be decided by the executing Court, such right has to be pleaded in the objections themselves. The objections filed by Sukhma Devi did not plead any such independent right, but merely reiterated the contentions earlier urged by Raj Kumar, which were comprehensively considered and rejected by the learned ADJ while passing the judgment and decree dated 19 November 2016 under execution. Allowing a fresh trial without any such pleading of an independent right, therefore, completely defeated the observations of this Court in the order dated 17 September 2018. This was an error which was apparent at a bare glance from the findings in the order dated 17 September 2018, vis-à-vis the averments in the objections filed by the appellant under Order XXI Rule 58. No lengthy process of argument or debate was involved. It, therefore, constituted an “error apparent on the face of the record” and, in so holding, the learned ADJ cannot be said to have erred, either on facts or in law.

35. Mr. Jain, learned Counsel for the appellant submits that, in exercise of review jurisdiction, a court cannot substitute, for the view taken in the decision under review, another view which appears to it to be better.

36. There can be no cavil with this proposition. That, however, is not what the impugned order does. The impugned order holds that the decision, in the order dated 22 April 2022 under review, to restart a trial on the objections that the appellant desired to urge, suffered from an error apparent on the face of the record. The impugned order arrives at this decision essentially on the basis of the findings contained in the judgment dated 17 September 2018 passed by this Court in Ex. FA 19/2018.

37. To my mind, the decision is unexceptionable. The tone and tenor of paras 17 and 21 to 23 of the judgment dated 17 September 2018 passed by this Court in Ex. FA 19/2018 are clear and unmistakable. This court clearly held that, in the said paragraphs, that

(i) possession of the premises let out to Satish Chand could not have been recovered by Raghunath Singh save and except in accordance with law,

(ii) on the contrary, Raghunath Singh recovered possession of the suit property from Satish Chand by taking possession from Raj Kumar,

(iii) Raj Kumar had himself been found, by the judgment and decree in execution – which had attained finality – to have dispossessed Satish Chand from the suit property otherwise than in accordance with law,

(iv) if the execution of such a decree could be permitted to be frustrated by the induction, in the suit property, of a third party, to whom the defendant in the suit property surrendered possession, even while the suit was pending, no claim for recovery of possession would ever attain finality or, even if it did, would ever be capable of being executed as new persons would take possession of the suit property,

(v) Section 52 of the Transfer of Property Act also proscribes transfer of the suit property during the pendency of the suit for recovery of possession, so as to effect the right of any of the parties to the suit, under any decree or order which may be made in the suit, except under authority of the Court,

(vi) Raghunath Singh was, therefore, bound by the decree and

Satish Chand, in execution, would remain entitled to recovery possession from Raghunath Singh and/or any other person who would come into the possession of the suit property unless such person established an independent right,

(vii) Order XXI Rule 35(1)13 of the CPC specifically provided that, in execution of a decree for delivery of immovable property, possession of such property would be delivered to the party in whose favour the decree was passed, by removing any person bound by the decree who refused to vacate the property,

(viii) thus, such a decree was executable, not only against the defendant/judgment debtor but also against any person who had come into possession of the suit property during the pendency of the suit,

(ix) similarly, Order XXI Rule 102 provided that nothing in

Order XXI Rules 98 and 100 would apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom the judgment debtor had transfer the property after the institution of the suit.

38. This Court, therefore, clearly held that Raghunath Singh, having come into possession of the suit property during the pendency of the suit, would be bound by the judgment and decree dated 19 November 2016 which would be executable against him, unless he could establish an independent right. In fact, in para 24, the position in law was further clarified by holding that any resistance to the execution by a transferee pendente lite of the judgment debtor would be limited to the issue of whether such objector was in fact a transferee and, if he was, the execution court had necessarily to hold that he had no right to

35. Decree for immovable property. – (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. resist the execution in view of the clear language contained in Order XXI Rule 102 of the CPC. The following passage from Silverline Forum, on which this Court relied to return the said findings make this position clear: “10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions “arising between the parties to a proceeding on an application under Rule 97 or Rule 99” shall be determined by the executing court, if such questions are “relevant to the adjudication of the application”. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act.”

39. Para 24 of the judgment dated 17 September 2018 further proceeds to rely on the decision in Usha Sinha to hold that the court could not extend a helping hand to a transferee pendente lite of property in respect of which a litigation was pending, as, otherwise, a decree holder would never be able to realise the fruits of the decree.

40. In the objections preferred by her under Order XXI Rule 58 of the CPC, Sukhma Devi claimed that (i) Raj Kumar was the tenant of Raghunath Singh in respect of the suit property, (ii) in January 2016, Raj Kumar vacated the suit property and handed over possession thereof to Raghunath Singh and (iii) Satish Chand was never the tenant of Raghunath Singh in respect of the suit property.

41. No other objection is raised in the application under Order XXI Rule 58 of the CPC filed by Sukhma Devi.

42. These objections had already been raised by Raj Kumar before the learned ADJ and considered while passing the judgment and decree dated 19 November 2016, which forms subject matter of execution.

43. Raghunath Singh could not legitimately seek to urge, with nothing more, that, merely because he had come into possession of the property during the pendency of the suit, he be permitted to urge the very same pleas that had already been urged by Raj Kumar and rejected. In any case, based on the very same pleas, Raghunath Singh could not have had the execution proceedings stymied and a fresh trial initiated. The mere change of the identity of the objector could hardly be a ground for permitting the very same objections, already urged and rejected, to again be canvassed, this time by Raghunath Singh, to protract execution of the judgment and decree dated 19 November 2016- which has become final – indefinitely.

44. This Court, while directing issuance of notice to the appellant Raghunath Singh in its order dated 17 September 2018, clarified that it was doing so as to enable Raghunath Singh to establish any independent right over the suit property, if he could. The objections filed by Sukhma Devi on behalf of Raghunath Singh under Order XXI Rule 58 of the CPC did not even plead any such independent right.

45. The order dated 22 April 2022, therefore, reinitiated the trial proceedings, this time qua Raghunath Singh, without examining whether he had, in fact, in his under Order XXI Rule 58 of the CPC, ventilated any independent right.

46. This was clearly not permissible and amounted, in fact, to defeating the intent and purpose of the order dated 17 September 2018 passed by this Court in Ex. FA 19/2018.

47. In that view of the matter, I find no infirmity with the impugned order dated 16 August 2023 passed by the learned ADJ in Execution No. 1348/18.

48. For all the aforesaid reasons, this appeal is bereft of merit and is accordingly dismissed.

C. HARI SHANKAR, J.

JANUARY 08, 2024