KIRAN GUPTA Vs. SATISH KUMAR

JUDGEMENT

(1.) This appeal has been filed against the order of the learned Lower Appellate Court setting aside that of the Executing Court and thereby dismissing the objections of the appellants.

(2.) Admittedly the property in dispute was owned by three brothers - Satpal, Amar Nath and Joginder Pal. It was under tenancy of various persons. The three co-owners brought out action for eviction of the appellants in the year 1969. In the year 1995 the eviction order was upheld by the Hon'ble Supreme Court. Thereafter the appellants purchased the share of one of the brothers and under the said sale deeds they are purported to have taken over possession of the entire property. Subsequent to that execution was filed by the remaining two decree holders which was sought to be thwarted by the appellants by pleading that they had stepped into the shoes of the one of the decree holders viz. Satpal and thus, being in possession as co-decree holders only a suit for partition would lie. This plea, as noticed above, has been negatived by the Appellate Court by holding that this clandestine and dishonest transaction could not be permitted to prevent the other decree holders from getting the fruit of the decree which they had obtained after almost three decades of litigation. Learned counsel has argued that the decree can be executed only against the JDs or persons claiming under them but the appellants can be classified in neither of these categories and the only remedy for the other co-sharers is to file a suit for partition. In this regard the relevant provisions would be Order 21 Rule 35, 97(2), 98 and 101 CPC. Order 21 Rule 35 lays down that in a decree for delivery of immovable property possession shall be delivered to the party to whom it has been adjudged. Rule 97 mandates that any person who is obstructed can make an application in this regard which shall be disposed of by the Court after discussing all questions relating to right, title or interest (under Rule 101) in the said application and not by a separate suit. Thus, the argument of learned counsel for the appellants that the only remedy for the other co- sharers is to file a suit for partition cannot be accepted. Reliance in this regard may be placed on Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported as (1997)3 SCC 694.

(3.) The alternative argument put forward is that in any case issues would have to be framed and thereafter the matter decided. This case presents a classic example of the general admonition which is held out to litigants in India viz. that the problems of a person start after he obtains a decree. The arguments made by learned counsel sound attractive but cannot detract from the fact that the course of action adopted by the appellants and Satpal was designed primarily to gain additional advantage at the cost of the other decree holders. Courts cannot be silent spectators when the process of law is sought to be perverted by such blatant attempts at unfairly depriving co-decree holders of the fruits of their hard earned victory. As regards the alternative argument, the Hon'ble Supreme Court in a three Judges Bench judgement in Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported as AIR 1998 SC 1754 held as follows:-