LAWS(P&H)-2010-10-72

BINDU ALIAS MALLAHAR Vs. NATTHI SINGH

Decided On October 28, 2010
BINDU @ MALLAHAR Appellant
V/S
NATTHI SINGH Respondents

JUDGEMENT

(1.) (ORAL) Kehar Singh son of Jawahar Singh has executed one agreement to sell dated 3.2.1995 in favour of petitioner No. 1 and, thereafter, Kehar Singh has executed one sale deed dated 18.1.1996 in favour of the petitioners pursuant to the agreement to sell dated 3.2.1995. After the agreement to sell dated 3.2.1995 in favour of petitioner No. 1, Kehar Singh executed another agreement to sell in favour of Nanak Chand - father of Natthi Singh - respondent No. 1 on 27.9.1995. A suit for specific performance of the contract pursuant to the agreement to sell dated 27.9.1995 was filed by Nanak Chand proposed vendee and father of respondent No. 1 against Kehar Singh which was decreed vide judgment and decree dated 11.10.2004. In a suit for specific performance filed by Nanak Chand against Kehar Singh, present petitioners were also defendants. However, they were proceeded ex-parte and decree passed dated 11.10.2004 was ex-parte against the present petitioners. Thereafter, present petitioners moved an application under Order 9 Rule 13 CPC for setting aside judgment and decree dated 11.10.2004 which is said to be pending.

(2.) Learned counsel for the petitioners vehemently argued that since agreement to sell in favour of petitioner No. 2 dated 3.2.1995 was prior in time to the agreement to sell in favour of Nanak Chand - father of respondent No. 1 dated 27.9.1995 and prior to the filing of the suit for specific performance by Nanak Chand sale deed was also executed by Kehar Singh in favour of the petitioners in pursuant to the agreement to sell dated 3.2.1995, hence, suit for specific performance filed by Nanak Chand pursuant to the agreement to sell dated 27.9.1995 ought not to have been decreed.

(3.) Learned counsel for the petitioners further states that application under Order 9 Rule 13 CPC is still pending, however, file thereof is missing from the Court record. Now apprehending that respondent No. 1 shall get possession pursuant to the judgment and decree dated 11.10.2004, petitioners have preferred objections under Section 47 CPC in the execution filed by respondent No. 1 being legal heir of Nanak Chand which were dismissed by the impugned order.