BALWINDER SINGH Vs. VIDYA CHABRA AND ORS.

JUDGEMENT

(1.) All these three petitions are inter-connected involving identical questions of fact and law, therefore, with the consent of learned counsel for the parties, are heard together and are being disposed of by this common judgment.

(2.) Brief facts of the present case, inter alia, are that Sri Balraj Chabra, husband of respondent No. 1, herein, and father of respondent Nos. 2, 3 and 4, herein, has filed Suit No. 132 of 1964 for recovery of Rs.35,500/- against Sri Amar Nath, respondent No.5, herein, Suresh Chandra, father of respondent No. 6, herein and Smt. Kalawati, mother of respondent No. 5 and grand mother of respondent No. 6, herein, saying Kashi Ram, late father of defendants Nos. 1 and 2 and late husband of defendant no. 3 had created simple mortgage vide registered deed dated 15.11.1952 in favour of Balraj Chabra, plaintiff at the time of taking loan. In the Suit No. 132 of 1964, defendants therein, have taken defence that in fact Munni Lal (third party) was the real owner of the property, in question, and Kashi Ram was benamidar of Muni Lal, therefore, had absolutely no jurisdiction and authority to create mortgage in favour of Sri Balraj Chabra/ plaintiff therein; it was further pleaded that suit was bad for non joinder of Munni Lal, the real owner of the mortgaged property; in the suit, preliminary decree was passed vide judgment dated 03.09.1965, decreeing the recovery of Rs.35,500/- alongwith cost and future interest @ 4% p.a. on the principal amount with the stipulation that defendants would pay decreetal amount within six months and preliminary decree may be drawn up in accordance with law; learned Trial Court was pleased to over rule plea of the defendants that Kashi Ram was not the owner rather Muni Lal was the owner; preliminary decree dated 03.09.1965 was challenged by the defendants [respondent No. 5, herein, and father of respondent No. 6, herein, as well as by mother of respondent No. 5 and grand mother of respondent No.6, herein]; however, First Appeal was dismissed confirming the preliminary decree dated 03.09.1965; since, defendants / judgment debtors have failed to pay the decreetal amount within six months, therefore, plaintiff/decree holder, has approached lower court to draw up the final decree for recovery of amount by selling the mortgaged property, in question; during the pendency of the proceedings to draw up the final decree, property in question, was attached under Order 21 Rule 54 C.P.C. whereupon Smt. Krishna Devi, wife of Muni Lal had filed her objections under Order 21 Rule 58 C.P.C. saying her husband Muni Lal was the real owner of the property and Kashi Ram, who had allegedly mortgaged the property, was only benamidar, therefore, Kashi Ram was not the real owner, therefore, property belonging to Muni Lal or thereafter his widow Smt. Krishna Dei could not be attached and sold; objections so filed under order 21 Rule 58 C.P.C. by Smt. Krishna Devi were dismissed vide judgment dated 06.04.1973; meanwhile, learned Collector without informing the Civil Court hearing the proceedings to draw up final decree, has proceeded to auction the property in question for recovery of State dues outstanding against Muni Lal, wherein, Preetam Singh, father of the petitioner No.1 and respondent Nos. 7 and 8, herein, was declared highest bidder and sale certificate was issued in his favour on 12.07.1973; without acquiring knowledge about the alleged sale by the Collector in different proceedings, proceedings pending for drawing up for final decree proceeded and final decree was passed on 04.12.1975; mortgaged and attached property was directed to be sold in the execution proceedings; ultimately Balraj Chabra/ plaintiff/decree holder was permitted to participate in the auction and in a public auction held on 23.08.1976, he was declared highest bidder and sale certificate was issued in his favour; having obtained sale certificate in his favour, Sri Balraj Chabra/ plaintiff/ decree holder has moved application under Order 21 Rule 97 C.P.C. to provide the police help to him in getting possession over the property purchased by him in the auction sale; in the proceedings under Order 21 Rule 97 C.P.C., petitioner and respondent Nos. 7 and 8, herein, have preferred their objections; vide order/judgment dated 09.09.1983, objections preferred by petitioner and respondent Nos. 7 and 8 were dismissed and application moved by the decree holder under Order 21, Rule 97 C.P.C. was allowed; appeal No. 350 of 2003, challenging the order / judgment dated 09.09.1983, filed under Order 21 Rule 102 C.P.C., was dismissed by this court, vide judgment dated 06.08.2007; thereafter, petitioner and respondent Nos. 7 and 8 have preferred three fresh objections under Order 21 Rule 89 C.P.C, under Section 47 C.P.C. as well as under Rule 5 Order 34 C.P.C. All these objections preferred by the petitioner and respondent Nos. 7 and 8 were dismissed by the Executing Court and revision arising therefrom were also dismissed; feeling aggrieved, petitioner has approached this Court by way of present three petitions.

(3.) I have heard Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Ashish Sinha, Advocate for the petitioner and Mr. Lok Pal Singh, learned counsel, appearing for respondent Nos. 1 to 4 / legal heirs of the plaintiff / decree holder and have carefully perused the record.