SATBIR Vs. ADARSH KAUL GILL

JUDGEMENT

(1.) THE captioned appeal impugns the order of the learned Single Judge dated 02.02.2012 passed in Execution Petition No. 286/2011. THE only submission made before us, by the learned counsel for the appellant, in support of the appeal is that, the warrants of possession issued qua the immovable property i.e., land comprising in Mustatil No. 90, Killa No. 11/2, Mustatil No. 91, Killa Nos. 7/1, 7/2, 14, 17, 15/2 and 16, total admeasuring 17 Bighas and 4 Biswas, situated within the revenue estate of Village Dera Mandi, Delhi (hereinafter referred to in short as the property) ought not to have been issued, as the execution petition was not maintainable, in view of it being barred, by limitation. In support of this submission learned counsel for the appellant Mr Pramod Ahuja, relied upon Article 136 of the Limitation Act, 1963 (in short the Limitation Act).

(2.) WE are in these circumstances called upon to decide as to whether in the factual matrix, which obtains in the instant case, the execution petition filed, was instituted, beyond the prescribed period of limitation. In order to appreciate the issue raised by the appellant, the following facts are required to be noticed: 2.1 Respondent no. 1, who is the decree holder in the present case, had instituted a suit, on 10.10.1988 being CS(OS) : 2524/1988, to seek specific performance of the agreement to sell dated 02.05.1988 (in short agreement). To be noted this agreement was executed between respondent no. 1 and respondent nos. 2 to 4 alongwith appellant nos. 1 and 2 (collectively referred to as the vendors); being the other party in the said agreement. The total sale consideration, as set out in the agreement, is a sum of Rs 7,20,000/-. It is not in dispute, that over a period of time respondent no. 1 paid a sum of Rs 2,50,000/-. 2.2. It appears that the vendors did not proceed to execute a sale deed, which propelled respondent no. 1 to institute the aforementioned suit for specific performance. Since, despite service of summons, (which were admittedly received by respondent no. 4, i.e., Satpal) no appearance was put in by the vendors, by an order dated 06.11.1989, the vendors, who were impleaded in the suit, were proceeded ex-parte. 2.3. It appears that the vendors took no immediate steps to retrieve the situation, which resulted in the court proceeding to decree the suit against the vendors based on the evidence placed before it by respondent no. 1. The judgment and decree thus came to be passed on 15.11.1990. Interestingly, respondent no. 1 in its suit had only sought a decree of specific performance of the agreement referred to above, which was granted by the court with a direction that the balance sale consideration be deposited by her, in court, within two weeks. The vendors, who were the defendants in the suit, were directed to take steps for execution and registration of the "sale deed" within two weeks of the deposit of the sale consideration, failing which the Registrar of this Court was directed to take necessary steps for execution and registration of the sale deed. 2.4. It is not in dispute that the vendors took no steps towards execution of the sale deed and consequently the Registrar of this court executed a sale deed dated 22.10.1991, in favour of respondent no. 1. 2.5. A perusal of the list of dates filed by the appellant, would show that admittedly, respondent no. 1 had taken out proceedings before the Revenue Assistant for mutation of the property in issue, in her favour. These proceedings were taken out in 1992. According to the appellant, on 23.11.1994, the Revenue Assistant declined the request for mutation as it was made in contravention of Section 33 of the Delhi Land Revenue Act, 1954 (in short DLR Act). 2.6 Undeniably, against the order dated 23.11.1994 a revision petition was filed by one of the vendors. This revision petition was filed on 04.07.1995. The appellants in the present proceedings were made parties to the revision petition. 2.7 A revision petition was, as it appears, preferred even by respondent no. 1 before the Financial Commissioner against order dated 23.11.1994, passed by the Revenue Assistant. This revision petition was dismissed on 21.12.1995, on the ground, that the gaon sabha being a necessary party, had not been arrayed as party in the said proceedings. Against the said proceedings a writ petition being: WPC(C) 1489/96 was filed. The appellant claimed to have received notice of the said writ petition, on 05.10.1998. 2.8 WE may observe here, that there is a brief mention of aforesaid events pertaining to revenue proceedings only in the list of dates. There are no averments, in this regard, the writ petition. One of the reasons perhaps the appellants have been constrained to refer to these events in the list of dates is because in an earlier round this very bench had heard an appeal being FAO(OS) No. 228/1999, wherein reference to these proceedings was made though the order ultimately came to be passed on other grounds to which we would shortly make a reference. 2.9 The point to be noted is that, the appellants were aware of the ex-parte judgment and the resultant execution of the sale deed during the course of the revenue proceedings. Despite, such a position obtaining, the appellants for the first time, preferred an interlocutory application being: IA No. 9784/1998, under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code), for setting aside the ex-parte judgment and decree dated 15.11.1990, only on 30.10.1998. The said application, however, was also accompanied with IA No. 1398/1998, preferred under Section 5 of the Limitation Act, to seek condonation of delay.

(3.) ON the aspect of limitation, the learned Single Judge was of the view that, since the Division Bench had by an order dated 30.04.2001 restrained the vendors/judgment debtors from transferring, alienating, parting with or creating any third party interest in the property during the pendency of the appeal; which was followed by an order dated 07.10.2010 restraining them from carrying on construction; vendors/ judgment debtors could not have parted with possession, as acting contrary to it would have resulted in breach of the order of the Division Bench. Therefore, impliedly, respondent no. 1, i.e., the decree holder was restrained from taking possession of the property. The relevant observations in this regard made in the impugned judgment are extracted hereinafter for the sake of convenience. "..... It is also not in dispute that the Division Bench on 30.04.2001, while admitting the appeal, passed the interim order directing the judgment debtors not to transfer, alienate, part with or create any third party interest in the property in question during the pendency of the appeal. Not only that, on 07.10.2010 further interim order was passed in the appeal to the effect that no further construction would take place. Therefore, in case both the interim orders are read together, it is clear that the judgment-debtors were precluded to part with possession of the suit property otherwise it would have been breached of the order passed by the Division Bench. Similarly, by the said orders, the decree-holder was impliedly asked not to receive the possession. 18. In the case referred by Mr Ahuja, the facts are different, i.e., the suit was filed for declaration of title and recovery of possession. There was no stay at any stage, granted by the court and the execution was filed after the expiry of twelve years. But in the present case, the Appeal Court has passed the specific order not to part with the possession of the suit property. Further, in the present case, in terms of decree, the sale deed was already registered in the name of decree holder in the year 1991 and next steps was merely to hand over the possession of the suit property which could not be parted with because of interim orders. Thus, the period, in which the interim orders were operated against the parties, is to be excluded for the purpose of limitation. It is also the admitted position that after the dismissal of appeal filed by the judgment-debtors, who failed to handover the possession of the suit property in terms of agreement, the decree-holder was within her right to file the present execution for the purpose of remaining in compliance. The objection now raised about limitation is misconceived and is not tenable to the facts of the present case, as it was an obligation on the part of the judgment- debtors to deliver the possession in terms of agreement, in consonance with the provisions of Section 55(1) of the Transfer of Property Act, 1882 which mandates that the seller to give, on being so required, to the buyer, the possession of the suit property as its nature admits. The entire scheme is that it has to be done in order to avoid multiplicity of proceedings and such duty is to be performed by the party who is also a party to the agreement meaning thereby it would be implied. 19. Since, after the dismissal of the appeal, the judgment-debtors did not come forward to handover the possession, the decree- holder is entitled to recover the same by filing of execution proceedings. Thus, the decision referred by the judgment- debtors does not help the case of objector, as the facts of the present case are materially different......"