BHAGWAN BAI Vs. CHIRANJI LAL

JUDGEMENT

(1.) THIS appeal is directed against the order of the Executing Court dated 14.8.2003 passed by the Civil Judge (Junior Division), Sirsa and order dated 2.11.2004 passed by the learned Addl. District Judge, Sirsa, whereby objections filed by the appellant were dismissed.

(2.) THE case set up by the appellant is that Sohan Lal-judgment debtor (hereinafter referred to as respondent No. 2) was in possession as absolute owner of the land measuring 7 kanals 14 marlas (in short, the land in dispute) being 1/2 share of the total area of 15 kanals and 8 marlas comprised in Rectangle No. 85, Killa No. 14/2 (7-8) and 15 (8-0) situated in the revenue estate of village Sultanpuria, Tehsil Rania, District Sirsa.

(3.) ACCORDING to the appellant, respondent No. 2 appeared in the suit and filed written statement taking wholly frivolous and irrelevant pleas and did not disclose the agreement of sale already executed by him in favour of the appellant on 31.3.1998 and also about the delivery of possession of the land in dispute to the appellant and receipt of earnest money of Rs. 50,000/- . All these facts have not been disclosed in the second agreement of sale dated 30.6.1999 executed in favour of respondent No. 1. It is further the case of the appellant that respondent No. 1 adduced his complete evidence set up in the plaint but respondent No. 2 did not deliberately contest the suit and led no evidence despite opportunities having been granted by the Court and consequently, his defence was struck off. The suit was decreed in favour of respondent No. 1 on 22.5.2002 on the basis of unrebutted evidence and respondent No. 2 was directed to get the sale deed registered in favour of respondent No. 1, in terms of the agreement of sale dated 21.6.1999. It was further held that failure of respondent No. 2. to execute the sale deed within three months from the date of judgment and delivery of possession of the land in dispute, respondent No. 1 would be at liberty to get the sale deed registered through the Court. It is further alleged that respondent No. 1 filed execution application dated 2.9.2002 in which it was admitted that respondent No. 2 had sold the land in dispute to the appellant and has already delivered possession to her. In the execution application, the the appellant herein was impleaded as respondent No. 2 for the first time. On notice of the execution proceedings, the appellant appeared and filed objections dated 23.10.2002 stating inter-alia, that respondent No. 2. had already executed an agreement of sale dated 31.3.1998 in respect of the land in dispute in her favour and had received Rs. 50,000/- as earnest money from her and had also delivered actual possession to her on 30.4.1998. It was also averred that respondent No. 2. was not competent to execute second agreement of sale dated 21.6.1999 in favour of respondent No. 1 and that the decree obtained from the Civil Court on 22.5.2002 was collusive between respondent No. 1 and respondent No. 2 in order to defeat the legitimate right of the appellant over the suit land. It was also alleged that since respondent No. 2 did not lead any evidence inspite of opportunities having been granted by the Court and allowed his defence to be struck of, therefore, it is an ample proof of collusiveness between respondent No. 1 and respondent No. 2. The objections were, however, dismissed by the Executing Court on the ground that admittedly, the sale deed was got registered by respondent No. 2., in favour of the appellant on 30.6.2000 ,whereas respondent No. 1. had filed civil suit on 1.5.2000. and after filing the suit, respondent No. 1 had also got issued a notice in the newspaper "Samar Ghosh" qua pendency of the suit regarding the suit land on 7.6.2000, which is prior to the execution of the sale deed in favour of the appellant. The Executing Court held that this case is covered by the Principle of 'lis pendens' and the appellant has no right to stall Execution of the decree. It was also held that framing of issue and leading evidence is not necessary to determine the objections filed by the appellant due to lis pendens.