Gyarsibai vs Rajjo Bai and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution challenges the order dated 28.11.2011, whereby an application preferred under Order 21 Rule 16 read with Section 151 of the Code of Civil Procedure, was allowed by the court below in Case No. 132A/2002 Execution. Admitted facts between the parties are that a judgment and decree dated 15.6.2005 was passed by District Court, Chachoda in Civil Appeal No. 49A/2002, whereby the plaintiffs were declared "Bhumiswami" and the defendants were directed to give possession to them within two months. The said judgment and decree was challenged in Second Appeal No. 204/2005 before this Court, which was rejected on 7.9.2010. Thereafter, the decree-holders filed the case for execution of the decree. In the said execution case, an application under Order 21 Rule 16 read with Section 151 CPC was filed by the applicant (respondent No. 8) stating that the suit land has been purchased by him by sale deed dated 17.11.2011 and, therefore, the applicant has a right to continue the execution proceedings and get the judgment and decree executed in his favour. It was opposed by the present petitioner.

The court below by impugned order has allowed the application and permitted the applicant Ramesh Chand to substitute the decree-holders.

Shri Vilas Tikhe, learned counsel for the petitioner submits that the sale deed relied on by the applicant Ramesh Chand was a fake document. It is specifically stated in reply to the application preferred under Order 21 Rule 16 CPC that the sale deed is a doubtful and fake document and applicant has no right to get himself substituted. Another ground of challenge is that before allowing the application in question, the decree-holders have not been noticed and heard which runs contrary to the mandate of the enabling provision.

Shri N.K. Gupta, learned counsel for the respondents supported the impugned order and submits that there is no infirmity in the order.

I have heard learned counsel for the parties and perused the record.

A bare perusal of the reply of petitioner (Annexure P/8) shows that a specific stand was taken by the petitioner that the sale deed on the strength of which the applicant had preferred the application for substitution is a fake/doubtful document. In my opinion, it was obligatory on the part of the court below to deal with this aspect before allowing the said application. In addition, it is apt to quote the first proviso of Order 21 Rule 16 CPC, which reads as under:-

Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

A bare perusal of this mandatory provision makes it clear that a notice needs to be given to the transferor and the judgment-debtor before proceeding with the execution. The objections of the transferor and judgment-debtor are required to be heard by the court below. The impugned order clearly shows that the decree holders/transferors have not been heard by the court below. The court below only after hearing the applicant/transferee and the judgment-debtor passed the impugned order. Thus, the mandatory requirement of Order 21 Rule 16 CPC has not been complied with by the court below.

Accordingly, I find substantial force in the argument of Shri Vilas Tikhe that the order passed by the court below suffers from manifest procedural irregularity and impropriety.

Consequently, the impugned order dated 28.11.2011 cannot be permitted to stand and is hereby set aside. The matter is remitted back to the court below to proceed in accordance with law. Petition is allowed. No costs.