SUBHASH CHAND Vs. MUKUT BIHARI

JUDGEMENT

(1.) This revision has been filed against concurrent orders of the Courts below declining the objections of the petitioner. The respondent No.1 had filed a suit for specific performance against respondent No.2 in respect of an agreement to sell dated 10.1.2000. After the suit was decreed and during its execution, the petitioner filed objections dated 7.8.2005 claiming that the respondent no.1 had also executed an agreement to sell in his favour dated 5.12.1995 and, therefore, claiming a prior right in the property and ultimately praying for dismissal of the execution application. The learned trial Court dismissed the objections as being not maintainable as well as on merits holding that it was clear that the petitioner was acting in collusion with respondent No.2. The learned Lower Appellate Court held Civil Revision No. 4052 of 2007(O&M) 2 that the objections were maintainable but confirmed the finding of collusion. The Lower Appellate Court further held that since the petitioner had admittedly not filed any suit for specific performance on the basis of the alleged agreement in his favour for almost ten years and since such a suit would now be barred by limitation, the present objections merited dismissal. The only argument of learned counsel is that once the Lower Appellate Court held that the objections were maintainable it was incumbent upon him to have remanded the case back to the Executing Court for trying the said objections after framing issues and allowing the parties to lead evidence. Though in normal circumstances such an argument would have to be accepted yet in view of the findings of fact recorded by the Courts below regarding the apparent collusion between the appellants and the judgment debtor the learned Lower Appellate Court was justified in dismissing the objections. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported as AIR 1998 SC 1754 the Hon'ble Supreme Court held as follows:-

(2.) In my opinion, the present case is fully covered by the decision of Hon'ble Supreme Court in Silverline Forum Pvt.Ltd.' case(supra). To the similar effect is the judgment of this Court in M/s Dashmesh Rice Mills and others v. M/s Govind Ram Anil Kumar reported as 2003(3) P.L.R. 514 wherein it was held as under:-

(3.) Thus the cardinal principle of law that follows is that the purpose of granting an opportunity to prove his case to an objector while entertaining objections under Section 47 read with Order 21 Rules 97 to 108 of the Civil Procedure Code does not amount to permission for abusing the process of law or Court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law, but such a discretion cannot be termed as a mere routine exercise of judicial discretion. Either way it should be for well founded and settled principles governing the subject."