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TMI Blog2021 (4) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Deevatige Ramanahalli, Mysore Road, Bengaluru (hereafter referred to as 'suit property') under the sale deed dated 17.03.1960. The suit land was converted and got merged in the municipal limits of Bengaluru and was assigned with Municipal Corporation No. 327 and 328, Mysore Road, Bengaluru. Narayanamma sold 1908 square yard of the suit property in Municipal Corporation (Survey No. 327) to 2nd and 3rd Respondents (hereafter referred to 'Jitendra' and 'Urmila') under a sale deed dated 13.05.1986. This was demarcated with the sketch annexed to the sale deed. The adjacent portion of property, Survey No. 327 was sold to Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi by another sale deed dated 13.05.1986. This property was also demarcated in the sketch and clearly shows its dimensions and boundaries annexed to the sale deed. Therefore, the first two Respondents, Shri Moolendra Kumar Gandhi and Smt. Baby Gandhi became absolute owners of the suit property with the totally admeasuring of 3871 square yards. Thus, Narayanamma had sold about 34,839 square feet of the property out of 1 Acre land (43,860 square feet) owned by her. Subsequently, after the sale of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 97 of the Code of Civil Procedure (CPC) since the judgment debtors/vendors had sold the property to the Appellant and Respondents No. 4 to 7. The Appellant i.e. a subsequent purchaser filed objections. 6. During the pendency of the proceedings the front portion of the suit property bearing Municipal Corporation No. 327, Mysore road, Bangalore became the subject matter of the acquisition for the Bangalore Metro Project. The decree holders (the first two Respondents) preferred objections to the proposed acquisition and further claimed the possession. In the meanwhile, aggrieved by the dismissal of the suit and decreeing the suit for possession, Narayanamma filed first appeals in the High Court R.F.A. No. 661-663/2007. In these proceedings it was brought to the notice of the High Court that the suit properties had been sold to the Appellant and Respondents No. 4 to 7. By an order Dated 10.04.208 the High Court directed the vendors to furnish particulars with respect to the sale, names of the purchaser and area sold etc. By common judgment dated 22.10.2009 the High Court dismissed all the appeals pending before it. The Special Leave Petition preferred by the vendors S.L.P. (C) Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence, in view of the obstruction by the Appellant and Respondents No. 4 to 7, by its order dated 23.04.2010. When obstruction proceedings were pending Under Order XXI Rule 97, the judgment debtor i.e. the vendors initiated criminal proceedings in 2016 against the decree holders; these were stayed by the High Court on 20.06.2016 and later quashed on 16.03.2017. The judgment debtors had alleged forgery of certain documents. The High Court directed appointment of Court Commissioner to identify and measure the property. At the time of disposal of the criminal proceedings High Court directed that the Commissioner's report along with the objections of the judgment debtors ought to be forwarded to the Executing Court. 11. In the meanwhile, by an order the Executing Court had appointed the Taluka Surveyor of BBMP as the Court Commissioner and directed him to visit the spot and survey and fix the boundaries of decretal property. Recall of these orders was sought by the judgment debtors; they also sought for reference to forensic examination by a Handwriting Expert of the sale documents. These two review applications were dismissed; and on 13.06.2017 the Executing Court declined the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the conveyances had overlapped. 16. Mr. Arunava Mukherjee appearing for the second set of Appellants also reiterated the submissions of Mr. Shailesh Madiyal that the decree holders had intentionally confused the identity of the property. He highlighted that the High Court acted in error in rejecting the Appellants' request for subjecting documents to forensic examination by handwriting experts. It was submitted that this aspect was completely overlooked because the Appellants' had raised serious doubts with respect to the genuineness and authenticity of the signatures of the documents. 17. The Respondents urged that this Court should not interfere with the findings of the High Court. Learned Counsel reiterated that numerous proceedings were taken out and that the judgment debtors had sold the very same property three times over-at least two times after the decree holders purchased their portions of the property and during the pendency of the suits filed by them. The judgment debtors had sought a declaration that the sale deeds executed in favour of the decree holders were not genuine and lost. Thereafter, the judgment debtor and some of the obstructers succeeded in coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned orders of the Executing Court directing Delivery Warrant, are set at naught, and the matter is remitted back for consideration afresh by appointing an expert person/official as the Court Commissioner for accomplishing the identification & measurement of the decreetal properties with the participation of all the stake-holders, in that exercise subject to all they bearing the costs & fees thereof, equally; (b) it is open to the Executing Court to take into consideration the entire evidentiary material on record hitherto including the Report already submitted by the Court Commissioner Shri Venkatesh Dalwai, (c) the amount already in deposit and the one to be deposited by the Obstructers in terms of orders of Coordinate Benches of this Court mentioned in paragraph 8 supra shall be released to the parties concerned, that emerge victorious in the Execution Petitions; (d) the JDrs shall jointly pay to the DHrs collectively an exemplary cost of Rs. 5,00,000/- (Rupees five lakh) only in each of the Execution Petitions within a period of eight weeks, regardless of the outcome of the said petitions; and, if, the same is not accordingly paid, they run the risk of being ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are liable to be dismissed. 22. These appeals portray the troubles of the decree holder in not being able to enjoy the fruits of litigation on account of inordinate delay caused during the process of execution of decree. As on 31.12.2018, there were 11,80,275 execution petitions pending in the subordinate courts. As this Court was of the considered view that some remedial measures have to be taken to reduce the delay in disposal of execution petitions, we proposed certain suggestions which have been furnished to the learned Counsels of parties for response. We heard Mr. Shailesh Madiyal, learned Counsel for the Petitioner and Mr. Paras Jain, learned Counsel for the Respondent. 23. This Court has repeatedly observed that remedies provided for preventing injustice are actually being misused to cause injustice, by preventing a timely implementation of orders and execution of decrees. This was discussed even in the year 1872 by the Privy Counsel in The General Manager of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing (1871-72) 14 Moore's I.A. 605 which observed that the actual difficulties of a litigant in India begin when he has obtained a decree. This Court made a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment debtor as to why the decree should not be executed as is given Under Order XXI Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgment debtor sometimes misuses the provisions of Order XXI Rule 2 and Order XXI Rule 11 to set up an oral plea, which invariably leaves no option with the Court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely. 27. This is anti-thesis to the scheme of Code of Civil Procedure, which stipulates that in civil suit, all questions and issues that may arise, must be decided in one and the same trial. Order I and Order II which relate to Parties to Suits and Frame of Suits with the object of avoiding multiplicity of proceedings, provides for joinder of parties and joinder of cause of action so that common questions of law and facts could be decided at one go. 28. Order I Rule 10(2) empowers the Court to add any party who ought to have been joined, whether as a Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transferee, where such transfer was made during the pendency of the suit or execution proceedings. However, such acts of abuse of process of law are seldom brought to justice by sending the judgment debtor, or any other person acting on his behalf, to the civil prison. 33. In relation to execution of a decree of possession of immovable property, it would be worthwhile to mention the twin objections which could be read. Whereas Under Order XXI Rule 97, a decree holder can approach the court pointing out about the obstruction and require the court to pass an order to deal with the obstructionist for executing a decree for delivering the possession of the property, the obstructionist can also similarly raise objections by raising new issues which take considerable time for determination. 34. However, Under Order XXI Rule 99 it is a slightly better position, wherein a person, other than the judgment debtor, when is dispossessed of immoveable property by the decree holder for possession of such property, files an application with objections. Such objections also lead to re-trial, but as the objector is already dispossessed, the execution of the decree is more probable and expeditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the status of the property during the pendency of the suit or while passing a decree. b) Issue public notice specifying the suit property and inviting claims, if any, that any person who is in possession of the suit property or claims possession of the suit property or has any right, title or interest in the said property specifically stating that if the objections are not raised at this stage, no party shall be allowed to raise any objection in respect of any claim he/she may have subsequently. c) Affix such notice on the said property. d) Issue such notice specifying suit number etc. and the Court in which it is pending including details of the suit property and have the same published on the official website of the Court. 38. Based on the report of the Commissioner or an application made in that regard, the Court may proceed to add necessary or proper parties Under Order I Rule 10. The Court may permit objectors or claimants upon joining as a party in exercise of power Under Order I Rule 10, make a joinder order Under Order II Rule 3, permitting such parties to file a written statement along with documents and lists of witnesses and proceed with the suit. 39. If the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the parties including declaration pertaining to third party interest in such properties. 3. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property. 4. After examination of parties Under Order X or production of documents Under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit. 5. Under Order XL Rule 1 of Code of Civil Procedure, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter. 6. The Court must, before passing the decree, pertaining to 7. delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property. 8. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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