IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
Civil Revision No. 1391 of 2007 (O&M)
Date of Decision : 22.10.2008
Charan Kaur
..........Petitioner
Versus
Balbir Kaur & others.
......Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. M.S. Lobana, Advocate
for the petitioner.
Mr. K.S. Cheema, Advocate
for respondent No.1.
****
VINOD K. SHARMA, J.
This order shall dispose of Civil Revision No. 1391 of 2007
titled Charan Kaur Versus Balbir Kaur & others and Civil Revision No.
1392 of 2007 titled Kuldeep Singh Versus Balbir Kaur & others, as they
arise out of one and the same order passed by the learned Addl. Civil Judge
(Sr. Divn.), Dasuya as affirmed by the learned Addl. District Judge,
Hoshiarpur.
For brevity facts are being taken from Civil Revision No. 1391
of 2007 titled Charan Kaur Versus Balbir Kaur & others
Smt. Balbir Kaur filed objections against auction of her land in
pursuance to the decree passed against Parlad Singh son of Sh. Bhagat
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Singh. The objections were preferred under Order 21 Rules 97 to 103 read
with Section 151 of the Code of Civil Procedure for setting aside auction
proceedings and restoration of possession of plot No. 31. The objections
were accepted and Kuldip Singh, the petitioner in Civil Revision No. 1392
of 2007 was directed to hand over vacant possession to the objector Smt.
Balbir Singh. Smt. Charan Kaur was directed to return the auction money to
Sh. Kuldip Singh.
Objector Balbir Kaur claimed that she is the owner of plot No.
31 situated at village Urmur (Fauji Colony ) tehsil Dasuya District
Hoshiarpur.
Late Sh.Bhagat Singh was owner in possession of the aforesaid
plot, which was sold to her vide sale deed dated 18.4.1995. It was claimed
that Smt. Charan Kaur decree-holder had made an attempt to get the sale
deed executed from late Sh. Bhagat Singh original owner of the plot in
respect of plot in question on 22.8.1991 under the garb of decree dated
25.10.1983. The said decree was not against late Sh. Bhagat Singh. It is the
case of the objector that objections having been raised by Sh. Bhagat Singh
the sale deed was not registered by Sub Registrar, Tanda.
The objector claimed that in the execution application the
decree-holder by deceiving the Court got order of attachment dated
25.7.1990 wrongly and illegally passed in respect of the plot in dispute. The
said order of attachment was challenged by late Sh. Bhagat Singh by raising
an objection that no decree against him was passed. In the revision petition,
this Court vide order dated 1.2.1991 set aside the order of attachment. The
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decree-holder chose not to file any fresh list of property of Parlad Singh
judgment debtor but she got the execution application moved by her
dismissed on 2.12.1994.
After the property was detached, late Sh. Bhagat Singh sold the
property in dispute to present objector Balbir Kaur vide sale deed dated
18.4.1995 and put her in actual physical possession of the plot.
The decree-holder did not get the execution application
restored but preferred the fresh execution application and again got attached
plot No. 31 at the back of the objector. The decree-holder even got the same
sold in auction and Kuldip Singh the auction purchaser got possession of
the plot in dispute being auction purchaser.
The objector Balbir Kaur challenged the auction proceedings as
well as auction on the plea that she was the owner of the plot in dispute and
not Parlad Singh the judgment debtor.
The decree-holder questioned the objection petition by taking a
preliminary objection that the objection petition was not maintainable as she
did not have any locus standi to file the objection petition.
The plea of estoppel against her was also raised. It was claimed
that the sale deed dated 18.4.1995 is a forged and fabricated document and
did not pertain to the disputed plot. It was claimed that the sale deed was got
executed by Parlad Singh the judgment debtor to create hindrance and to
hamper the execution proceedings as the possession of the property had
already been taken over.
On merits a plea was taken that the Court was not deceived. It
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was claimed that the proceedings were carried out legally.
The issues were framed and parties were allowed to lead
evidence on the objections filed by the objector. The objector proved on
record the sale deed dated 18.4.1995 as Ex. O-1. The extract of entries in the
scribe register were also placed on record as Ex. O-2. The Deed Writer
proved the writing of the sale deed produced on record and in support
thereof he produced the extract from his register. The copy of the Sanad
allotment in favour of late Sh. Bhagat Singh as well as certificate were also
produced on record. The petitioner examined Jarnail Singh, Patwari.
The learned executing Court allowed the objections by holding
that the sale in favour of the auction purchaser is liable to be set aside and
possession is liable to be returned to the objector. It was also held that the
decree-holder was liable to refund the amount to auction purchaser.
Whereas objection with regard to the locus standi of the objector was also
decided against the decree-holder. The decree-holder as well as the auction
purchaser preferred two separate appeals, which were consolidated and
disposed of by a common order.
The learned lower appellate Court had affirmed the findings
recorded by the learned executing Court and, thus, dismissed both the
appeals.
Mr. M.S. Lobana, learned counsel appearing on behalf of the
petitioner impugned the orders under challenge by alleging that the
petitioner is victim of injustice as all efforts for recovery of compensation of
Rs. 50,000/- awarded to her by the Civil Court for murder of her son have
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failed and the judgment debtor Parlad Singh in connivance with his father
Bhagat Singh and his brother Dukh Bhajan Singh has been successful in
delaying the execution proceedings with one objection or the other.
It is the contention of the learned counsel for the petitioner that
the plot was got attached but no objections were raised to the attachment by
Bhagat Singh or any of his sons or spouse and thus the sale was affirmed. It
was claimed that the objections by the objector Balbir Kaur were not
competent as the sale deed executed in her favour was a fictitious document
as no sale consideration was passed on and, in fact, the sale deed was
executed to defeat the rights of the decree-holder. The learned counsel for
the petitioner also challenged the findings of the learned Courts below
holding therein that the ownership of the judgment debtor over the plot in
question was not established.
The main plank of the contention of the learned counsel for the
petitioner was that Balbir Kaur is the wife of the brother of judgment debtor
and the sale deed records the total consideration having been paid to Bhagat
Singh prior to registration of the sale deed. It has thus to be presumed that it
is a fictitious document prepared to defeat the rights of the decree-holder.
The contention of the learned counsel for the petitioner,
therefore, is that once it is held that the sale deed is null and void, the
objector would have no locus standi to challenge the auction as she would
have no concern with the plot.
On consideration of the matter, I find no force in the
contentions raised by the learned counsel for the petitioner. Without
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referring to other reasons it may be noticed that the attachment of this very
plot in execution of decree against Parlad Singh was ordered to be set aside.
In spite of orders of this Court the decree-holder again chose to get the said
very plot attached for the reasons best known to her, therefore, the
allegations of the objector that the Court was misled are not without basis.
It may also be noticed that the only contention raised by the
learned counsel for the petitioner to challenge the locus standi is that the
sale deed is a fictitious document as no sale consideration has passed on
before the Sub Registrar at the time of registration of sale deed.
This contention of the learned counsel for the petitioner cannot
be accepted. The objector proved on record the ownership of late Bhagat
Singh as well as transfer of plot in her favour by way of registered sale deed
which stood duly proved. The transfer cannot be said to be fictitious transfer
as late Bhagat Singh was not a judgment debtor and, therefore, it cannot be
said that the plot has been transferred in order to defeat the rights of the
decree-holder as is claimed by the petitioner.
The non-payment of consideration is not a question which can
be agitated by the petitioner once the vendor and the vendee accepted the
transaction before the Sub Registrar at the time of registration of the sale
deed. The said assertion could not be challenged by the petitioner unless
some interest of party raising objections disclosed in the property so
transferred.
Admittedly, the petitioner-decree-holder has not claimed any
right in the said plot and the right of late Sh.Bhagat Singh to transfer the
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plot in his ownership either by way of sale deed or any other means cannot
be subject matter of challenge, as he was absolute owner of the said plot.
The learned Courts below, therefore, rightly came to the
conclusion that Balbir Kaur objector was the owner of the plot in dispute
and there was no decree or judgment against her which could entitle the
executing Court to attach and sell her property. The learned Courts,
therefore, rightly allowed the objection petition. The orders passed by the
learned Courts below, therefore, do not call for any interference.
No merit.
Dismissed.
22.10.2008 ( VINOD K. SHARMA )
'sp' JUDGE
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