SWARAN SINGH Vs. UDHAM SINGH

JUDGEMENT

(1.) Udham Singh (respondent No. 1 herein) agreed to sell property in dispute to the petitioners vide agreement dated 5.1.1984. He did not execute the sale-deed in terms of the agreement and that led to the filing of a suit by the petitioners for possession by way of specific performance of the agreement. The suit was filed on 30.7.1984. During the pendency of the suit, i.e. 23.10.1984, Udham Singh sold the property to defendants No. 17 to 20 (respondents No. 2 to 5 herein). The subsequent purchasers resisted the suit on the ground that they are the bona-fide purchasers for a consideration, without notice of the agreement in favour of the petitioners. The plea of the subsequent purchasers was not accepted as the sale in their favour was found to be hit by rule of lis pendens. The trial Court did not grant the relief of possession, but decreed the suit only for damages. In appeal by the petitioners before the District Judge, the judgment and decree of the trial Court was set aside and suit for specific performance was decreed on 15.9.1987. Under the decree, Udham Singh was directed to executive the sale-deed and defendants No. 17 to 20 were also asked to joint Udham Singh in execution of the sale-deed. In terms of the decree, defendant No. 1 (Udham Singh) and defendants No. 17 to 20 did not execute the sale-deed and for getting the same executed, the petitioners filed an execution application. The execution application was resisted by one Pargat Singh who was mortgagee of the property. His objections were dismissed on 17.12.1988. The execution Court while dismissing the objections also appointed one Inderjit, Steno, of the Court, to execute the sale-deed on behalf of defendant No. 1. In pursuance of this order, Inderjit, Steno, executed sale-deed only on behalf of defendant No. 1, though defendants No. 17 to 20 were also required to join in the execution of sale-deed. On 6.2.1989, defendants No. 17 to 20 filed an application under Section 152 of the Code of Civil Procedure, seeking modification of the decree on the ground that under the decree, sum of Rs. 34,000/- which was required to be paid by the petitioner to defendant No. 1, was in fact payable to defendants No. 17 to 20 being subsequent purchasers from Udham Singh (defendant No. 1). This application was dismissed on 4.1.1992 as the Court was of the view that application under Section 152 of the Code of Civil Procedure is not maintainable as the remedy of these defendants was to go in appeal against the judgment and decree dated 15.9.1987 passed by the District Judge. Since Inderjit, Steno, had executed sale-deed only on behalf of defendant No. 17 to 20 directed to join the execution in terms of the decree dated 15.9.1987 or someone from the Court on behalf of defendants No. 17 to 20 be appointed to execute the revised sale-deed. This application was dismissed by the executing Court on the ground that remedy, if any of the petitioners, was to go in appeal against the order vide which Inderjit, Steno, was appointed to execute sale-deed on behalf of defendant No. 1. This order is now being impugned by the petitioners in the present revision petition.

(2.) Mr. B.R. Mahajan, Advocate, for the petitioners, contended that executing Court ought to have allowed the prayer of the petitioners as the prayer was made in terms of the decree which was passed in their favour. In reply, counsel for defendants No. 17 to 20 has contended that subsequent purchasers are in possession since 1984 and have paid a sum of Rs. 62,000/- to defendant No. 1, and if they are asked to execute the sale-deed now, that would result in manifest injustice to them. He has further contended that once the execution stood satisfied, no fresh application was maintainable.

(3.) Having heared the learned counsel for the parties at some length, I am of the view that the revision petition deserves to succeed. It is an established principle of law and the parties should not be made to suffer on account of mistake on the part of the Court. Admittedly, under the decree which was passed in favour of the petitioners, not only the petitioners but defendants No. 17 to 20 also were required to join in the execution of sale-deed. At the time when the Court directed the Steno, Inderjit, to execute sale-deed on behalf of defendant No. 1, it ought to have directed the said man to execute sale-deed on behalf of defendants No. 17 to 20 also. This mistake came to the notice of the petitioners only when in execution of the decree, possession was sought to be taken from the subsequent purchasers and an objection was raised on their behalf that the sale-deed which was executed by Inderjit, Steno, on the directions of the Court, is not on their behalf, but is only on behalf of defendant No. 1. In order to meet that objection, the present application was filed by the petitioners to get a revised sale-deed executed. The fact that subsequent purchasers are in possession since 1984 or have paid Rs. 62,000/- to defendant No. 1, is of no consequence as this very plea was negatived by the District Judge while decreeing the suit. The sale made in favour of defendants No. 17 to 20 is hit by rule of lis pendens. Defendants No. 17 to 20 cannot be permitted to say that, they are bona fide purchasers for a consideration or are entitled to protect their possession, because any transfer made during pendency of the suit cannot bind the parties to the original suit. The other objection that the petitioners were satisfied after execution of the sale-deed, and execution application stood satisfied, is also of no substance because execution was not complete till all the persons who were directed to execute the sale-deed, had executed the same. As already noticed, Inderjit, Steno, had executed the sale-deed on behalf of defendant No. 1, whereas it was required to be executed on behalf of defendants No. 17 to 20 as well. The decree which was obtained after contest, cannot be allowed to be frustrated by allowing the subsequent purchasers to raise technical objections. Consequently, this revision petition is allowed and the order of the trial Court is set aside. A direction is issued to the executing Court to issue notices to defendants No. 17 to 20 to execute a revised sale-deed in terms of decree dated 15.9.1987. In case they fail to execute the sale-deed or join in the execution of the sale-deed within the period to be allowed by the executing Court, the executing Court shall appoint an official of the Court, who then shall execute the revised sale-deed on behalf of defendants No. 17 to 20. The amount which was deposited by the petitioners in pursuance of the decree for payment to defendant No. 1 (Udham Singh), if not withdrawn by defendant No. 1 or his legal representatives (in case defendant No. 1-Udham Singh is dead), shall be paid to defendants No. 17 to 20 on their furnishing adequate security to the satisfaction of the executing Court. Parties through their counsel are directed to appear before the executing Court on 16.3.1994.