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Taramati and Etc. Vs. Mody Bachubhai Sankalchand - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 651, 681 and 682 of 1982
Judge
Reported inAIR1982Guj350; (1982)2GLR731
ActsCode of Civil Procedure (CPC), 1908 - Sections 146 - Order 21, Rule 16
AppellantTaramati and Etc.
RespondentMody Bachubhai Sankalchand
Appellant Advocate R.N. Shah, Adv.
Respondent Advocate K.A. Mehta, Adv.
Cases ReferredGanesh Narayan Kulkarni v. Ganesh Ramchandra Joshi
Excerpt:
.....claimed to be in possession through persons who themselves had no right - petitioners inducted in suit premises at time when final decree not pronounced - not sufficient to give petitioners any title. - - 66 of 1963 against his wife bai savita and his son named jitendra dahyagar as well as some other persons who claim to be the assignees or transferees of the said bai savita and jiteindra dahyagar. shah must fail. very clearly lays down that the proceedings initiated by or against any person can be carried forward by the representative in the same manner as the original applicant could. the mere fact that the petitioners were inducted in the suit premises at the time when the suit and the appeal proceedings were going on and the final decree had not yet been pronounced is not a..........as the receiver of the suit properties. thus, the present opponent is a receiver in respect of the suit premises in all the three revisions and at the same time, he is also the successor-in-title of the aforesaid dahyagar hiragar with regard to two suit premises which are the subject matter of the present civil revision application no. 651 of 1982 and civil revision application no. 681 of 1982. as regards the third suit premises which is the subject matter of civil revision application no. 682 of 1982 the said cachucha sankalchand modi is only a receiver appointed by this court and does not claim title to that property.4. mr. r. n. shah, the learned counsel for the petitioners in all the three petitions has urged before me that as there is no decree against the present petitioners, the.....
Judgment:
ORDER

1. These three revision applications are filed by the petitioners who claim to be in possession of their respective premises against the common opponent. The three revisions are heard together at the request of the learned Advocates of the parties and are being disposed of by this common judgment. The dispute pertains to the property belonging to one Dahyagar Hiragar. Who had filed Civil Suit No. 66 of 1963 against his wife Bai Savita and his son named Jitendra Dahyagar as well as some other persons who claim to be the assignees or transferees of the said Bai Savita and Jiteindra Dahyagar. The said Suit No. 66 of 1963 was heard and disposed of on 30-11-1967 against which first appeal No. 721/61 was filed in his Court which was also heard and disposed of by the judgment and decree dated 13-4-1973. The judgment and decree of this Court was challenged in the Supreme Court which confirmed the said judgment and decree in 1978 whereby Dahyagar Hiragar was held to be the owner of the suit properties and that his wife Bai Savita and his son Jitendra were held to have no right, title or interest whatsoever in respect of the suit properties.

2. During the pendency of the said litigation it seems that Bai Savita and Jitendra Dahyagar had transferred their alleged rights in the property to some other persons. The present petitioners are the persons who are claiming to be in possession of certain portion of the said property as having been inducted by the so-called assignees or transferees of Bai Savita and Jitendra Dahyagar. The final decree was against not only the wife and son of the plaintiff Dahyagar but also against their assignees who were defendants Nos. 1, 2, 5 and 6. The original plaintiff Dahyagar had filed execution Darkhasts against the assignees, of his wife and son and others who claim through the said assignees. During the pendency of the said execution application No. 840/73, the judgment-creditor Dahyagar transferred his interest in the suit property to the present opponent in all the present three revision applications, who was also defendant No. 7 in the original decree.

3. Jyotsna Dahyagar, the daughter of the original plaintiff filed a civil suit against her father, mother, brother and the aforesaid assignees with a view to stall the Darkhast proceedings by claiming her own right, title or interest therein. In the application for interim relief filed by Jyotsna in the trial Court, the Court was pleased to appoint a Court Commissioner. Against the order on the application for interim relief an appeal from order was filed in this Court, wherein this Court was pleased to appoint the present opponent Bachubhai Sankalchand Modi as the receiver of the suit properties. Thus, the present opponent is a receiver in respect of the suit premises in all the three revisions and at the same time, he is also the successor-in-title of the aforesaid Dahyagar Hiragar with regard to two suit premises which are the subject matter of the present Civil Revision Application No. 651 of 1982 and Civil Revision Application No. 681 of 1982. As regards the third suit premises which is the subject matter of Civil Revision Application No. 682 of 1982 the said Cachucha Sankalchand Modi is only a receiver appointed by this Court and does not claim title to that property.

4. Mr. R. N. Shah, the learned Counsel for the petitioners in all the three petitions has urged before me that as there is no decree against the present petitioners, the execution cannot proceed against them. This contention of Mr. Shah is not tenable in view of paragraph 6 of the order of the executing Court while disposing of the Dar- khasts. In fact, the Court has passed a specific order whereby the defendants Nos. I to 6 are directed to hand over possession of the premises in their respective possession. The original defendants Nos. 3 and 4 have purported to have transferred the premises in question to the present petitioners and hence it is not open to the present petitioners to claim as they were not a party to the original suit there is no decree against them. If the present petitioners were inducted in their respective premises by the original defendants Nos.3 and 4 who had themselves no right title or interest in the suit property, they cannot transfer any right, title or interest to the petitioners. Therefore, the first contention of Mr. Shah must fail.

5. The second contention taken by Mr. Shah is that there is no decree in favour of the present opponent Bachubhai Sankalchand and, therefore, he is not entitled to execute the decree. This contention of Mr. Shah also must be rejected because, the said Bachubhai Sankalchand Modi is a transferee in respect of the suit premises in the aforesaid two revisions and he would have the same right to execute the decree which the judgment-creditor had, especially in view of the fact that in the sale deed, the aforesaid Dahyagar Hiragar had transferred to the present opponent the right to recover possession in respect of the suit premises. Moreover, the present opponent in all the three revisions is appointed a receiver by this Court and hence also, he can proceed with the execution proceedings just as the original judgment-creditor Dahyagar Hiragar would have proceeded with. Section 146 of the Civil P. C. very clearly lays down that the proceedings initiated by or against any person can be carried forward by the representative in the same manner as the original applicant could. Mrs. K. A. Mehta, the learned Counsel for the opponents in all the three revisions has relied on 0. 21, R. 16 and submitted that the application for execution by the Present opponent can be carried forward as the transferee of the original judgment creditor especially in view of the fact that the lower Court had passed an order on Ext. 201 in the previous Darkhast No. 840/73 which runs as under:

'In my opinion, once a receiver is appointed to manage these properties, whatever interest the Darkhastdar has would be vested in the Receiver vis-a-vis his right to collect the rent to settle the disputes between the tenants and such ancillary reliefs that can be claimed from them. The disposal of Darkhast at the instance of the original plaintiff therefore would not be quite proper as the receiver has already stepped in and has requested that he should be made a party in this proceeding and be allowed to prosecute the Darkhast further. Shri P. B. Jani (Advocate) on the other hand urged that the receiver has not obtained any Orders from the Court appointing him as Darkhastdar to prosecute this application and as such his request should not be granted. It is not possible to accept the contention of Shri Jani that without obtaining the order of this Court, Bachubhi cannot prosecute this Darkhast especially when the properties of which he is appointed receiver are also the subject matter of this execution. Hence I pass the following order: -

Order: --

The request of Bachubhai Sankalchand to be made a party in execution application No. 840 of 1973 is granted and is made a party to step in place of Dahyagar Hirgar with a view to further execute the decree'

6. It may be noted that this order of the Court below was not challenged and is in force till today. This contention of Mrs. Mehta is correct and is accepted with regard to the suit premises in respect of the first two revision applications. Mr. Shah has heavily relied on Order 21, Rule 97 and contended that even if it is held that the present opponent is entitled to carry forward the present execution application, he would be entitled to only symbolical possession and cannot evict the present petitioners who are in actual physical possession of the suit premises. The contention of Mr. Shah is fallacious. The present petitioners are claiming to be in possession through the persons who themselves have no right, title or interest in the suit property and, therefore, they cannot transfer any right which they themselves do not have. The mere fact that the petitioners were inducted in the suit premises at the time when the suit and the appeal proceedings were going on and the final decree had not yet been pronounced is not a sufficient ground to give the present petitioners any title better than what their transferors ultimately were held to have got. Mr. Shah has relied on the Division Bench judgment of Bombay High Court in Ganesh Narayan Kulkarni v. Ganesh Ramchandra Joshi, AIR 1971 Bom 16 wherein it was held that a private purchaser of the property in dispute cannot make an application under Order 21, Rule 97. Mrs. Mehta has submitted that the ratio in this case is not applicable to the present case because, the transfer of interest in that case had taken place subsequent to the order passed by the executing Court rejecting the Darkhast and, therefore, it operated as res judicata; whereas in this case, no such order has been passed by the executing Court. Mrs. Mehta has also contended that in the Bombay case the executing Court had not passed any order under Order 21, R. 16 whereas in the present case there is such an. order as set out above. Mrs. Mehta's submission is correct and the same is accepted.

7. In the result, all the three petitions must fail and the rule is discharged with no order as to costs. Interim stay is vacated.

8. At this stage Mr. R. N. Shah states that the operation of the present judgment and order be stayed for a period of six weeks to enable him to take such legal steps as may be available to him. His request is reasonable and the same is granted. The operation of the present judgment, and order is stayed for a period of six weeks.

9. Petitions dismissed.


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