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Prabhat Kumar Behera Vs. Tahara Khatun and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 11 of 1977
Judge
Reported inAIR1978Ori219
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 5; Transfer of Property Act, 1882 - Sections 53A
AppellantPrabhat Kumar Behera
RespondentTahara Khatun and ors.
Appellant AdvocateB. Patnaik and ;D. Dhal, Advs.
Respondent AdvocateP.C. Misra, ;U.N. Sahu and ;S.K. Mohanty, Advs.
DispositionAppeal dismissed
Cases Referred(Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi
Excerpt:
.....of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1 and 2, dated 20-1-76 and 25-12-75 respectively, which have been filed by the appellant to support his case of the alleged agreement dated 8-8-73, have been, on good reasons, found to be fraudulent documents......it was not mentioned that the said execution case was levied for the benefit of all the joint decree holders, and accordingly the said execution case could not proceed.in neither of the two courts below the appellant opposed the execution of the decree on the above ground. if the appellant had raised any such objections at that stage, the executing court could have considered that aspect of the matter in the perspective of the relevant facts. as no such question was raised, it would be deemed that that question was given up and/or was constructively decided against the appellant, and hence the appellant would not be permitted at this stage to raise the said objection. (see (1972) 1 cut wr 147 : (air 1972 orissa 119)) (fb); and ((1975) 41 cut lt 894).apart from the above, in arkhit.....
Judgment:

1. The judgment-debtorin Execution Case No. 23/74 has preferred this appeal. On the petition of respondents 1 and 2 to execute the decree granted in the House Rent Control Case No. 87 of 1971 the said execution case was registered against the appellant. In the execution case the appellant filed an application under Section 47, C. P. C. opposing the execution proceeding on various grounds. On that application Misc. Case No. 162 of 1974 was registered by the executing court. After accepting oral and documentary evidence from both the parties and after hearing their counsel the said application under Section 47 C. P. C. was dismissed by the executing court. Against the said decision the judgment debtor preferred an appeal, being Misc. Appeal No. 30/76, in the lower appellate court. On the questions raised on behalf of the appellant in the said appeal the court below held that the alleged agreement between the appellant and respondent No. 3, if any, did not by itself create any interest in or charge on the property in favour of the appellant, and by that the appellant did not acquire any right or title over the property save and except the right to enforce his contract, if any. It found that there was no dispute between the parties that the appellant was a tenant under respondents 3 to 7, who were the owners of the house in question, and that during the pendency of the House Rent Control Case a family partition took place amongst the owners of the house and the property fell to the share of respondent No. 3. It also found that prior to the alleged contract between the appellant and respondent No. 3 for the sale of the house in favour of the appellant, respondent No. 3 had actually entered into a contract, by a registered deed of agreement, with respondents 1 and 2 for the sale of the said house, and in pursuance of the said agreement, respondent No. 3 executed a registered sale deed in favour of respondents 1 and 2 on 20-12-73 (Ext. E) thereby transferring the suit house and the decree obtained in the aforesaid House Rent Control Case in favour of respondents 3 to 7. It also finds that the transferee has taken the assets and the benefits arising out of the said transfer and accordingly the assignment of the decree in the House Rent Control Case to evict the appellant from the house in question was legal; and the transferee of the said decree can legally execute the said decree.

The appellant has preferred this appeal against the aforesaid decision of the court below.

2-3. It was at first urged by Mr. Patnaik, the learned counsel for the appellant, that in the application for the execution of the decree it was not mentioned that the said execution case was levied for the benefit of all the joint decree holders, and accordingly the said execution case could not proceed.

In neither of the two courts below the appellant opposed the execution of the decree on the above ground. If the appellant had raised any such objections at that stage, the executing court could have considered that aspect of the matter in the perspective of the relevant facts. As no such question was raised, it would be deemed that that question was given up and/or was constructively decided against the appellant, and hence the appellant would not be permitted at this stage to raise the said objection. (See (1972) 1 Cut WR 147 : (AIR 1972 Orissa 119)) (FB); and ((1975) 41 Cut LT 894).

Apart from the above, in Arkhit Padhan's case, reported in AIR 1964 Ori 83, it has been categorically held that the provisions of Order 21, Rule 5 do not enjoin that the execution application must contain a statement that the entire decree is being executed for the benefit of all the decree-holders. In quite a number of decisions of other High Courts it has been held that the absence of such a statement does not invalidate the application for execution. In the above mentioned decision of this Court it has further been held that when one of the several decree-holders applies for execution and others do not object to the execution being granted to him, it is not for the judgment-debtors to see that sufficient steps have not been taken to safeguard the interest of the other decree holders. Quite a number of decisions of other High Courts support the above views, as can be seen from the aforesaid decision of this Court.

In the case reported in AIR 1949 Ori 73 (Muralidhar Bhattar v. Mahendranath Das) it has been held that evidence could be taken in the execution proceeding itself to determine whether the execution had been filed by one of the decree-holders for the benefit of all.

In this case undisputedly the appellant was a tenant under respondents 3 to 7 who admittedly were the owners of the suit house and that in the family partition which took place during the pendency of the House Rent Control Case that house fell to the share of respondent No. 3. Respondents 1 and 2 claim that they have purchased the house in question along with the right to execute the decree in the House Rent Control Case for eviction of the appellant therefrom. In this case the affidavit of respondent No. 3 in an earlier case has been exhibited as Ext. A, wherein respondent No. 3 has categorically admitted the said transfer in favour of respondents 1 and 2. There is no controversy about the above facts. By purchasing the property and on the assignment of the decree to execute the same respondents 1 and 2 have stepped into the shoes of respondent No. 3, who was one of the owners of the property and one of the decree-holders in the said House Rent Control case. So these two respondents have levied execution of the decree as two joint decree-holders of the said decree. In case notice of this execution proceeding has not gone to the other joint decree-holders, then the Court may direct issuance of notice on them, and may also enquire as to whether this execution proceeding is for the benefit of all the decree-holders. It is not for the judgment-debtor to oppose execution of the decree on the ground that sufficient steps have not been taken to safeguard the interest of the other decree-holders and/or that the applicants for the execution of the decree have not established that the said execution proceeding is for the benefit of all the decree-holders. On the above considerations I do not see any weight or substance in the above-mentioned contention of Mr. Patnaik.

4. Mr. Patnaik next contended that in view of the provisions of Section 53-A of the T. P. Act the execution case was not maintainable as there was an agreement between respondent No. 3 and the appellant for the sale of the property in question in favour of the appellant. According to the appellant that agreement was executed by respondent No. 3 on 8-8-73. The alleged agreement deed has not been produced in this case. The receipts Exts. 1 and 2, dated 20-1-76 and 25-12-75 respectively, which have been filed by the appellant to support his case of the alleged agreement dated 8-8-73, have been, on good reasons, found to be fraudulent documents. Apart from the said consideration, merely on the alleged agreement for sale of the property the appellant's status as a tenant of the house did not change to that of an owner of the said property. Even if for the sake of argument it is assumed that there was in fact such an agreement in favour of the appellant, that by itself did not create any title in the suit property. Moreover, there is nothing convincing on record to show the specific terms of the said agreement or that the terms on which the property was agreed to be sold had been fulfilled by the appellant or that he always was ready and willing to perform his part of the contract. The rights and benefits which the transferee acquires on part performance of a contract under Section 53-A of the T. P. Act can only be claimed if the existence of the pre-conditions mentioned therein is established. The provisions of Section 53-A apply to a case where there is a written agreement and in this case it is not established that the alleged agreement was reduced to writing and the transferor, or anybody else on his behalf, signed the said deed. Moreover, in the absence of the written agreement the terms necessary to constitute the transfer cannot be ascertained with reasonable certainty. It is also not established that the transferee is continuing in possession of the property in part performance of the contract and has done some act in furtherance of the contract. Accordingly the provisions of Section 53-A cannot be availed of by the appellant.

If there was any such agreement the appellant may institute a suit for specific performance of the said contract.

In the case reported in AIR 1960 SC 1368 (Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi) it has been held that under Section 54 of the T. P. Act a contract for sale does not of itself create any interest in or charge on immoveable property. Where therefore the parties enter into a mere agreement to sell, it creates no interest in favour of the vendee, and the proprietary title does not validly pass from the vendor to the vendee.

On the above facts and considerations the appellant cannot oppose or obstruct the execution of the decree by merely asserting orally that he had entered into an agreement with respondent No. 3 to purchase the said house.

5. Apart from the above. I find that prior to the alleged agreement, respondent No. 3 had entered into an agreement with respondents 1 and 2 by the registered deed Ext. D dated 7-7-73 for selling the said house in favour of respondents 1 and 2. The registration of such a contract in the eye of law is notice of the same to all concerned and accordingly subsequent contracts, if any, for the sale of the said house will be subject to the said registered contract. After the said deed of agreement was registered respondent No. 3 executed the sale-deed Ext. E dated 21-12-73, thereby alienating the property in question in favour of respondents 1 and 2 and enabling them to execute the decree passed in the House Rent Control Case against the appellant. Section 8 of the T. P. Act inter alia provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. So by the registered sale-deed Ext. E the right, title and interest of respondent No. 3 in the house in question including his right to execute the decree against the appellant was transferred in favour of respondents 1 and 2. It is not disputed that in the family partition amongst respondents 3 to 7, who were the joint decree-holders of the said decree, the property in question fell to the share of respondent No. 3. So by the registered deed Ext. E not only the entire property in question in all its aspects was transferred in favour of respondents 1 and 2, but also the right to execute the aforesaid decree was conferred on them. Accordingly, respondents 1 and 2 were legally capable of executing the decree of eviction against the appellant, the judgment-debtor in the said decree. Hence the execution proceeding, started at the instance of the respondents 1 and 2, is legally maintainable.

6. The impugned judgment is not challenged on any other grounds.

7. I do not see any merit in this appeal and it is accordingly dismissed with costs.


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