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Dharamchand Vs. Nandlal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 211 of 1969
Judge
Reported inAIR1981Raj38
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 95; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantDharamchand
RespondentNandlal and ors.
Appellant Advocate D.S. Shishodia, Adv.
Respondent Advocate H.M. Lodha, Adv.
DispositionAppeal allowed
Cases ReferredPukhraj v. Ghevarchand
Excerpt:
.....period of limitation prescribed for filing such application under the limitation act and so this suit for possession of the shop cannot lie in view of the fact that the plaintiff failed to challenge the order of dismissal of his application for delivery of actual possession of the shop to him in the superior courts and the said order became final and operates as res judicata. ghevarchand reported in air 1974 raj 183 wherein it was clearly observed in para 6 that in view of the referred to above decision of the supreme court the view hitherto taken by the rajasthan high court on this point can no longer be said to be good law. to an auction purchaser clearly relates to execution, discharge or satisfaction of the decree and if the purchaser applied for obtain-.ing the possession of the..........rise to this second appeal may be briefly stated as follows:--nandlal plaintiff instituted a suit for possession of a shop situated in village daulatgarh against dharam chand. suwalal, sohanlal. lalchand, mst. sugnabai and kanhaiyalal defendants in the court of civil judge, bhilwara on august 19, 1966. the averments in the plaint were that sobhalal, ratanlal bapna and others residents of village daulatgarh obtained a money decree against defendants nos. 1 to 4 and one gyanchand badola applied for its execution. in execution of the said decree the shop of the judgment-debtors who are defendants in this case was attached and sold by the court of execution. nandlal plaintiff purchased the disputed shop at the public auction on june 13, 1957 for rs. 405/-. the sale was made absolute on.....
Judgment:

K.D. Sharma, J.

1. This is a civil second appeal under Section 100, C. P. C. filed by Dharamchand against the judgment and decree of the learned District Judge Bhilwara dated February 27, 1969 confirming the judgment and decree of the Additional Civil Judge Bhilwara dated August 20, 1968 passed in civil original suit No. 315/66.

2. The relevant facts giving rise to this second appeal may be briefly stated as follows:--

Nandlal plaintiff instituted a suit for possession of a shop situated in village Daulatgarh against Dharam Chand. Suwalal, Sohanlal. Lalchand, Mst. Sugnabai and Kanhaiyalal defendants in the court of Civil Judge, Bhilwara on August 19, 1966. The averments in the plaint were that Sobhalal, Ratanlal Bapna and others residents of village Daulatgarh obtained a money decree against defendants Nos. 1 to 4 and one Gyanchand Badola applied for its execution. In execution of the said decree the shop of the judgment-debtors who are defendants in this case was attached and sold by the court of execution. Nandlal plaintiff purchased the disputed shop at the public auction on June 13, 1957 for Rs. 405/-. The sale was made absolute on May 26. 1962 by the court of execution in favour of the plaintiff who later on obtained sale certificate from the Court. Before the sale was made absolute, the defendant-judgment-debtors applied for cancellation of the sale under Order 21, Rule 90 read with Section 47 old C. P. C. but their application was dismissed and the sale was not set aside by the court of execution. The defendant-judfiment-debtors thereupon preferred an appeal in the High Court at Jodhpur but it was dismissed by the High Court on August 19, 1963. The plaintiff further averred in his plaint that after obtaining the sale certificate of the disputed shop he became owner thereof and asked the defendant-judgment-debtors to hand over to him the possession of the shop in question. The defendants, however, continued to occupy the shop in their possession and refused to hand over its possession to the plaintiff. The plaintiff therefore claimed a sum of Rs. 204/- as damages for use and occupation of the shop at the rate of Rs. 4/- per month from the defendants since May 26, 1962 and prayed to the Court for pendente lite and future mesne profits at the rate of Rs. 5/- per month till the date of delivery of possession of the shop.

3. The suit of the plaintiff was resisted by Dharamchand defendant on several grounds which are enumerated in his written statement dated October 3, 1966. The main ground on which he contested the suit was that the plaintiff after obtaining sale certificate of the shop filed an application in the court of execution on August 23, 1964 under Order 21, Rule 95. C. P. C. for obtaining delivery of its actual possession from the defendant-judgment-debtors, but his application for delivery of possession was dismissed by the court of execution on July 24, 1965 on the ground that it was filed beyond the period of limitation prescribed for filing such application under the Limitation Act and so this suit for possession of the shop cannot lie in view of the fact that the plaintiff failed to challenge the order of dismissal of his application for delivery of actual possession of the shop to him in the superior courts and the said order became final and operates as res judicata. The defendant No. 1 also pleaded in his written statement that the plaintiff was not entitled to any sum of damages for use and occupation of the shop.

4. It appears that the other defendants did not file any written statement.

5. Upon pleadings of the parties the Additional Civil Judge, Bhilwara, to whom the suit was transferred for trial framed as many as five following issues:

1 D;k oknh [kjhnnkj uhyke dksuhyke gqok tk;nkn dCts dh ckcn uEcjh ukfyl djus ls dkuquu jksd gS A vkSj bl izdkjds ekeys vnkyr btjk; }kjk gh r; gksuk pkfg;s nlls ;g nkok pyus ;ksX; ugh gS A

2 D;k oknh us vk- 21 :- 95 .kk-nh ds rgr gtjk U;k;ky; esa lsy lfVZfQdsV ds vk/kkj ij fliqnxh A tk;nkn ds fy,izkFkZuk i= izLrqr fd;k vkSj og izkFkZuk i= oDr fe;kn ds vk/kkj ij [kkjht gksx;k blfy, dkuwu oknh dks uacjh nkok djus ls jksdrk gS vkSj nQk 47 vk- nh- dsvulkj bl izdkj dk nkok ugha py ldrk vkSj vlwy jsl tqMh dkVk ykxw gkrk gS A

3 D;k okn i= oknh oDr fe;kngS A

4 D;k oknh bLrseky mi;ksxtk;nkn ds gtkZuk ds 204 :i;s izkIr djusdk vf/kdkjh gS A

5 oknh fdl okn dk eqLrgd gS A

6. The learned Additional Civil Judge decided issues Nos. 1, 2 and 3 in favour of the plaintiffs on February 13, 1968 and then proceeded to record evidence on issue No. 4 after recording the evidence the learned Additional Civil Judge gave his decision on issue No. 4 and passed a decree for possession of the shop and for damages to the tune of Rs. 102/- for use and occupation thereof against all the defendants with costs of the suit to be recovered from Dharam Chand defendant alone. Aggrieved by this judgment and decree of the learned Additional Civil Judge Bhilwara Dharamchand defendant preferred an appeal in the court of District Judge Bhilwara who after hearing the parties and going through the record dismissed the appeal and confirmed the Judgment and decree of the lower court. As against this judgment of the learned District Judge, Bhilwara, Dharamchand has come in second appeal to this Court as stated above.

7. I have carefully perused the record and heard Mr. D. S. Shishodia learned counsel for the appellant and Mr. Hanmant Mal Lodha learned counsel appearing on behalf of the respondents.

8. It has been strenuously urged before me by Mr. D. S. Shishodia learned counsel for the appellant that it was obligatory on Nandlal auction-purchaser of the disputed shop to apply for delivery of possession under Order 21, Rule 93, C. P. C. -- and in fact -- Nandlal filed an application to this effect in the court of execution on August 23, 1964, but his application was dismissed as time-barred upon the objection raised by Dharamchand appellant. Mr. D. S. Shishodia further urged that after dismissal of his application for delivery of actual possession under Order 21, Rule 95, C. P. C. Nandlal was not entitled to institute a regular suit for possession of the shop as such suit was barred by Section 47, C.P.C. According to his submission both the courts below wrongly placed reliance upon a decision of this Court Mohanlal v. Bhagwanchand reported in 1965 Raj LW 474 wherein it was held that the application under Order 21, Rule 95, C. P. C. made by the decree-holder auction-purchaser for delivery of possession did not relate to the execution, discharge or satisfaction of the decree and so subsequent proceedings regarding delivery of possession of the property purchased at the auction cannot be said to have been barred bv Section 47, C. P. C. Mr. D. S. Shishodia referred me to a recent decision of the Supreme Court Harnandrai v. Devidutt reported in AIR 1973 SC 2423 and contended on its strength that the auction purchaser of the property which is sold in execution of a decree is undoubtedly a party to the suit for the purpose of Section 47 and if any question is raised by the judgment-debtor at the time of delivery of possession regarding the nature of the rights purchased by the auction-purchaser, such a question be held to have arisen between the parties to the suit and must be taken to have related to the execution, discharge and satisfaction of the decree. Mr. D. S. Shi-shodia relied upon an authority of this Court also Pukhraj v. Ghevarchand reported in AIR 1974 Raj 183 wherein it was clearly observed in para 6 that in view of the referred to above decision of the Supreme Court the view hitherto taken by the Rajasthan High Court on this point can no longer be said to be good law. Mr. Hanmantmal Lodha learned counsel for the respondents could not succeed in controverting the legal position laid down by their Lordships of the Supreme Court in their adverted to above decision. Consequently, I have no hesitation in holding that the question relating to delivery of possession under Order 21, Rule 95, C. P. C. to an auction purchaser clearly relates to execution, discharge or satisfaction of the decree and if the purchaser applied for obtain-. ing the possession of the property which he purchased at a sale in execution of the decree and his application was dismissed as time barred or otherwise by the court of execution and he failed to file an appeal against the order of dismissal, he is not entitled to institute a separate suit for possession of the property. The reason for holding the above view is that the purchaser at a sale in execution of the decree must be deemed a party to the suit till possession of the property purchased by him is delivered to him and therefore all questions relating to delivery of possession under Order 21. Rule 95, C. P. G. relate to the execution, discharge and satisfaction of the decree and no separate suit for possession of the property purchased by - Nandlal auction-purchaser in this case could legally be filed after dismissal of his application under Order 21. Rule 95. C. P. C. by the court of execution on the ground of having been filed beyond the period of limitation of one year. The only course open to the auction-purchaser was to prefer an appeal against the order of dismissal of his application under Order 21, Rule 95, C. P. C. and not to have filed a separate suit for possession as he did in this case. Consequently the second appeal filed by Dharamchand appellant is accepted and the judgments and decrees of both the courts below are set aside and the suit of the plaintiff Nandlal is dismissed. As the second appeal is decided in favour o the appellant on a pure question of law the parties are left to bear their own costs throughout.


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