Krishnakant Bhargava v. Bhagwansaran Sharma

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execution in Execution Case No.12/21. In execution of the aforesaid decree, the decree holders submitted draft of the sale deed before the Executing Court on 07/02/2022 (Annexure P/4). The Executing Court approved draft of sale deed and directed the judgment/debtor to execute the sale deed in favour of the decree holders on 21/09/2022, failing which the Court Nazir was directed to execute the sale deed thereafter in favour of the decree holders. Since judgment debtor has alleged violation of this direction issued by the Executing Court vide order dated 16/09/2022 (Annexure-P/5), relevant portion of the order is reproduced below for ready reference:-

"ऐससे ममें अब ममानननीय उच च्‍च न यमायमालय ककी डडिककी कमा पमालन ससुननशश्चित करनसे हसेतसु मदययून कको आदसेनशित डकयमा जमातमा हहै डक वह डदनमानांक 21.09.2022 कको उप पनांजनीयक कमायमार्यालय डिबरमा ममें उपशसस्थित हकोकर ममानननीय उच च्‍च न यमायमालय कसे अपनील कममानांक 292/2009 ममें पमाररत ननरर्याय डदनमानांक 11.08.2021 कसे पमालन ममें डडिककीदमार कसे पक्ष ममें ववकय पत्र कमा सम पमादन करमायसे और यडद मदययून ननयत डदनमानांक कको उप पनांजनीयक कमायमार्यालय डिबरमा ममें उपशसस्थित हकोकर डडिककी कसे पमालन ममें ववकय पत्र डडिककीदमारमान कसे हक ममें सम पमाडदत नहहनां करतमा तको उसकसे उपरमान त नमायब नमाशजर नसववल न यमायमालय डिबरमा कको न यमायमालय ककी ओर ससे उपशसस्थित हकोकर ममानननीय उच च्‍च न यमायमालय ककी उक त डडिककी कसे पमालन ममें ववकय पत्र डडिककीदमारमान कसे हक ममें सम पमाडदत करमानसे हसेतसु अनधिककृत डकयमा जमातमा हहै तस्थिमा उक त सनांबनांधि ममें नमायब नमाशजर कको पत्र मय ववकय पत्र कसे पमारूप कसे पसेवषित डकयमा जमायसे तस्थिमा पत्र ककी पनत पभमारह अनधिकमारह नजमारत अनसुभमाग डिबरमा ककी ओर पसेवषित ककी जमायसे तस्थिमा नमायब नमाशजर डिबरमा आदसेशि कसे पमालन ममें डडिककी कसे ननष पमादन ककी सयूच्‍चनमा न यमायमालय कको पसेवषित करमें शजससे अनभलसेख ममें सनांलग न डकयमा जमायसे।"

3. In compliance of order dated 16/09/2022, the Court Nazir has executed sale deed in favour of the decree holders on 22/09/2022 which has been brought on record as Annexure- P/7.

4. The judgment debtor being aggrieved by the Execution of the sale deed in favour of the decree holders, made a complaint to the District Judge with regard to conduct of Nayab Nazir in executing the aforesaid sale deed in violation of the Court order. Taking note of the said complaint, the District

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Judge got conducted a preliminary enquiry into allegations in respect of which Judicial Magistrate First Class submitted a report on 22/05/2023 (Annexure -P/10). Pursuant to the aforesaid preliminary enquiry report, a regular departmental enquiry was initiated against the Court Nazir who executed the sale deed in question. The enquiry report was thereafter submitted on 09/11/2023 which is placed on record as Annexure- P/12. The petitioner's counsel has placed heavy reliance upon the aforesaid preliminary enquiry report submitted by the Judicial Magistrate First Class and the enquiry report submitted by Enquiry Officer in departmental proceeding. However, in considered opinion of this Court, said reports cannot be relied upon in execution proceedings inasmuch as the decree holders did not have an opportunity to cross-examine the witnesses in departmental enquiry

5. The petitioner/judgment debtor also submitted an objection under Section 47 of CPC before the Executing Court which has been filed as Annexure- P/13 alongwith the writ petition. A bare perusal of the objection reveals that various allegations were made against Nayab Nazir as also decree holders with regard to violation of Executing Court order dated 16/09/2022. It has been alleged that Nayab Nazir illegally executed the sale deed on 22/09/2022 without there being any Court order authorizing him for the same. It is the allegation made in the objection that as per the Court order dated 16/09/2022, Nayab Nazir was required to execute the sale deed on 21/09/2022 but the sale deed could not be executed by him on 21/09/2022 for reason best known to him. The sale deed was executed on the next date i.e. 22/09/2022 for which he had no authorization. It is further alleged in the objection that survey numbers were mischievously changed without obtaining approval of the Executing Court.

6. The decree holders filed reply to the said objection which has been

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brought on record as Annexure-P/14. After hearing both the parties, the Court below has rejected the objection vide impugned order dated 26/11/2024 (Annexure-P/1).

7. Learned counsel for the petitioner raised similar objections as has been raised in the application filed under Section 47 of CPC. He submits that even though he was present in the office of Sub-Registrar on 21/09/2022, the decree holders did not book the slot for registration of sale deed and in collusion with Nayab Nazir, the sale deed was got registered on 29/02/2023. It is submitted that Nayab Nazir was not having any authorization for registration of the sale deed on 22/09/2022.

8. Learned counsel for the petitioner submitted that in the draft submitted before the Executing Court on 07/02/2022, the description of the land was mentioned as Survey No.1827 min. and Survey No.1826.7 min. ad- measuring 22500 Sq.ft. However, contrary to the said draft of the sale deed, the sale deed has been registered in respect of Survey No.1826/6/1/2 and Survey No.1827/6/2. He, thus, submits that a fraud has been played by Nayab Nazir in collusion with the decree holders and therefore, the objection raised by the judgment debtor ought to have been accepted.

9. On the other hand, respondents/decree holders supported the impugned order and submits that as per direction issued by the Executing Court on 16/09/2022, the judgment debtor was required to execute the sale deed on 21/09/2022 and on his failure to execute the sale deed on the said date, Nayab Nazir was directed to execute the sale deed in their favour. It is their submission that since the judgment debtor failed to appear before the office of Sub-Registrar on 21/09/2022, Nayab Nazir was authorized to execute the sale deed on 22/09/2022 and has thus, not committed any illegality in this regard. With regard to discrepency in the survey numbers alleged by the

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judgment debtor, it is the submission of the respondents' counsel that during the process of registration of sale deed it was pointed out by the service provider that Survey no.1826/7 and Survey no.1827 min. have been changed in the revenue records and have been re-numbered as Survey no.1826/6/1/2 and Survey no.1827/6/2. He submits that the boundaries as also the area of the land in question as mentioned in the draft of the sale deed is exactly similar to the one in respect of which the sale deed has been executed. He, thus, submits that judgment debtor is only trying to create hurdles in the matter so that he is not required to part with possession of the property. He, thus, prayed for dismissal of this miscellaneous petition.

10. Considered the arguments and perused the record.

11. The substance of the objections raised by the petitioner/judgment debtor are two folds;

(i) Nayab Nazir was directed to execute the sale deed in favour of the decree holders on 21/09/2022 and he has no authorization to execute the sale deed on 22/09/2022;

(ii) Survey numbers in respect of property in question are different in the draft of sale deed and sale deed executed on 22/09/2022. He submits that there could be no change in the sale deed without approval of the Executing Court.

12. So far as first ground of the judgment/debtor is concerned, order dated 16/09/2022 passed by the Executing Court is clear. The directions have been reproduced herein before which shows that the judgment debtor was directed to execute the sale deed in favour of decree holders on 21/09/2022. In case judgment debtor fails to execute the sale deed on 21/09/2022, Nayab Nazir was directed to execute the sale deed thereafter. Even though, learned

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counsel for the petitioner argued that judgment debtor was present in the office of Sub-Registrar on 21/09/2022, however, he failed to substantiate his submission. In fact, there is no averment made in the objection filed under Section 47 of CPC stating that the judgment debtor was present in the office of Sub-Registrar on 21/09/2022. Rather it is the case of the judgment debtor that Nayab Nazir (and not him) was directed to execute the sale deed on 21/09/2022. Thus, the finding recorded by the learned Executing Court in the impugned order that the judgment debtor failed to appear and execute the sale deed on 21/09/2022, in para 12 of the impugned order, is correct and is hereby upheld.

13. Since the judgment debtor failed to execute sale deed on 21/09/2022, Nayab Nazir was authorized and competent to execute sale deed on 22/09/2022.The objection raised by the judgment debtor in this regard is, thus, rightly rejected by the Executing Court.

14. So far as the second objection with regard to discrepency of survey numbers mentioned in the draft sale deed and the sale deed executed on 22/09/2022 is concerned, it is gathered that in the draft of the sale deed Survey numbers mentioned are 1826/7 and 1827/min. and the area of the aforesaid land is stated to be 22500 Sq.ft. Further, in the draft of the sale deed, the boundaries of the land in question were mentioned as under:-

(i) Towards East - हरसनी नभतरवमार रकोडि

(ii) Towards West- सम पवत्ति दहगर

(iii) Towards North- सम पवत्ति कसुरसेलसे

(iv) Towards South- सम पवत्ति दहगर

15. It is found that in the sale deed executed on 22/09/2022 also, the same survey numbers and the same boundaries with same area has been

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mentioned. However, there is a note put up by the service provider that with the passage of time, the aforesaid survey numbers have been changed in the revenue records and have been re-numbered as Survey no.1826/6/1/2 and Survey no.1827/6/2. Thus, land in respect of which the sale deed has been executed is found to be exactly same which was mentioned in the draft of the sale deed. The change in Survey numbers is only because of re-numbering of survey numbers.

16. It is not the case of the judgment debtor that sale deed has been executed in respect of the some other land. Strenuously, he only disputes the difference in the survey numbers. Even for the sake of argument, objection of the judgment debtor is accepted, he would not be effected if the sale deed is executed in favour of some other land. Thus, it is found that judgment debtor has raised the objection only to drag the litigation.

17. Another important aspect of the matter to be considered is that the judgment debtor had filed M.P. No.6042/2024 before this Court challenging order dated 20/09/2024 passed in MJC No.39/2022 in respect of the same litigation wherein his objection under Section 47 of CPC was rejected. This Court dismissed the miscellaneous petition vide order dated 11/11/2024 wherein in respect of the identity of the property following observations were made:-

"The fact for clarification of which the petitioner wants to summon the Naib Nazir is not material and has no bearing on the merits of the case as the boundaries and the area of the property are the same as mentioned in the sale deed and in the judgment and decree of the Court. It is also not the case of the petitioner that the property shown in the judgment and decree and the property shown in the sale deed are different.

Mere recital of changed survey number of the disputed property in the sale deed does not render it tempered sale

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deed."

18. In view of of the aforesaid, it is already held by this Court that the sale deed in respect of the suit property only has been registered in favour of the decree holders and mere change in survey numbers does not render the sale deed illegal.

19. Further, the Apex Court has considered somewhat similar situation in the case of Narayan Dutt Tiwari Vs. Rohit Shekhar & Anr. reported in

(2012) 12 SCC 554 wherein the Apex Court in para 24 to 27 held as under:-

"24.The Supreme Court also, in K.A. Ansari v. Indian Airlines Ltd. has held that : (SCC p.170, para 20)

"20.......Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non- implementation.

25. In Deep Chand v. Mohan Lal it was held that the purpose of execution proceeding is to enable the decree- holder to obtain the fruits of his decree and even if there is any ambiguity, interpretation which assists the decree-holder should be accepted; the execution of decree should not be made futile on mere technicalities. It was further observed that keeping in view the prolonged factum of litigation resulting in the passing of a decree in favour of a litigant, a rational approach is necessitated and the policy of law is to give a fair and liberal, and not a technical construction, enabling the decree-holder to reap the fruits of his decree.

26. We may at this stage notice that under Section 36 of CPC, the provisions relating to execution of decree, apply to the execution of orders also; if any precedent is needed, reference can be made to M.V.S. Manikayala Rao v. M. Narasimhaswami.

27. The Courts have always attempted against rendering the orders and decrees of the Court to be merely good on paper and otherwise ineffective to settle the rights of the parties. Attempts have always been made to take a

view/interpretation which renders a decree of the Court to be executable rather than inexecutable. The Courts cannot hold

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a decree or order passed after long deliberations as in the present case also, to be merely paper decree/order incapable of deciding in fact what it was intended to decide or incapable of changing the position which it intended to change. The Court cannot take a role of a silent spectator and see its order being frustrated by a party. The power of enforcement of orders cannot be reduced into an empty one."

20. In the case of Ravinder Kaur Vs. Ashok Kumar & Anr. reported in (2003) 8 SCC 289, the Apex Court held as under:-

"22...................Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgment -debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."

21. In view of the observations made by the Apex Court in the aforesaid case mere technical objections raised by the judgment debtors can not be allowed to deny the decree holders fruits of the decree obtained by them.

22. Learned counsel for the petitioner placed reliance upon the judgment of the Apex Court passed in the case of Rajbir Vs. Suraj Bhan & Anr.

reported in (2022) 14 SCC 609 to say that when there is change in survey number, the draft of the sale deed should have been got approved by the Executing Court. The facts of the case before the Apex Court were entirely different. As is seen from the facts narrated in para 6 of the said judgment, agreement as also the draft of the sale deed was relatable to Khewat 346 while the sale deed was executed in respect of Khewat 448. Both were found to be in respect of entirely different land and the land in respect of the sale deed was executed was abutting the road. In those facts, the Apex Court

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interfered with the order of the Executing Court. However, in the present case, the facts are entirely different. As observed above, judgment debtor does not dispute that the land in respect of which the sale deed has been executed is the same as described in the draft of the sale deed. His only objection is with regard to mentioning of new Khasra numbers mentioned on the advice of service provider. Thus, judgment rendered by the Apex Court in the case of Rajbir (supra) does not help the petitioner.

23. In view of the aforesaid, objections raised by the petitioner/judgment debtor are held to be unsustainable in law and learned Executing Court is justified in rejecting the same.

24. In view of the above, the impugned order is upheld and this miscellaneous petition fails and is, hereby, dismissed.

25. Certified copy as per rules.

(ASHISH SHROTI)

JUDGE

rahul