Idrish vs Ash Mohamad

Paramjeet Singh, J.—Instant revision petition has been filed u/s 115 of the CPC for quashing the impugned judgment dated 15.11.1999 passed by learned Additional Civil Judge (Senior Division) Ferozepur Jhirka whereby objection filed by the petitioners has been dismissed. Brief facts of the case are that respondent No. 1 Ash Mohamad filed a suit against the defendants which was decreed on 30.09.1992. During the pendency of the suit, judgment debtor Nos. 5 and 6 sold some land to judgment debtor Nos. 7 to 10 and on the application of decree holder, judgment debtor Nos. 7 to 10 were impleaded as a party in the execution petition vide order dated 18.01.1997 and the amended execution petition was filed. Judgment debtor No. 5 filed reply. Judgment debtor Nos. 4, 7 to 10 also raised objection that they are bona fide purchasers for valuable consideration and the decree dated 30.09.1992 is null and void because judgment debtor Nos. 1 and 2 were minors and were not properly represented. The Executing Court after considering the pleadings framed the following issues:--

Whether the property of JD is liable to be attached on the grounds as alleged? OPA

Whether the application is not maintainable in the present form? OPR

Whether the application is without jurisdiction? OPR

Whether the judgment and decree dated 30.9.92 are against law, null and void and are liable to be set aside? OPR

Whether the respondents is bonafide purchaser? OPR

Relief.

The Executing Court after appreciating the material on record recorded a combined finding on issue Nos. 2 to 4 and came to the conclusion that in view of the facts and circumstances of the present case, it cannot be said that the minors have not been effectively represented or any prejudice has been caused to them on account of noncompliance of the Order 32 Rule 3 of C.P.C. The Executing Court also concluded that it is apparent from the evidence on record that JDs No. 1 and 2, namely, Smt. Akhtari and Smt. Jubeda had filed a civil suit No. 365/87 against Smt. Aimna and Sh. Ash Mohamad (DH in this case). As per the plaint of the said suit, plaintiffs Smt. Akhtari and Smt. Jubeda had pleaded that their father Khushi Khan had died a civil death and on his death, his widow Smt. Aimna inherited the share of Khushi Khan as her life estate. The Executing Court elaborately discussed the evidence led by the parties and came to the conclusion that the minors were represented by guardian Mauj Khan. It has also been admitted by the mother of the minors that they were in custody of Mauj Khan. The Executing Court ultimately came to the conclusion relying upon the judgment of Full Bench of this Court in Amrik Singh and Another Vs. Karnail Singh and Others, , that no prejudice has been caused to the minors. The Executing Court also considered the objections raised by the petitioners that they are bonafide purchasers for consideration and are not bound by the judgment, and decree dated 30.09.1992. In the suit, order of status quo was passed. During the pendency of the civil suit, after the status quo order dated 30.10.1987, they got the sale deed executed in their favour. It is settled principle of law that purchasers during the pendency of the suit cannot be considered bona fide purchasers for consideration. They can only claim damages from the vendor. Since the petitioners are subsequent vendees and are purchasers during the pendency of the civil suit, their sale deeds are affected by principle of lis pendens.

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

Only two points have been raised by the learned counsel for the petitioners. First point is with regard to the minority of Akhtari and Jubeda - judgment debtors No. 1 and 2, daughters of Khushi Khan, who were allegedly not properly represented. Second point is raised with regard to the sale deeds by which the judgment-debtors are claiming themselves as bona fide purchasers for consideration.

So far as the objection raised regarding minority of Akhtari and Jubeda, judgment debtors No. 1 and 2, is concerned, they have neither approached this Court nor raised objection before this Court with regard to execution of the decree. Since they have not approached this Court, they have accepted the decree as well as the execution. The petitioners have failed to show that any prejudice has been caused to the minors. They were duly represented before the Executing Court by a guardian. Now, the petitioners cannot raise objection on their behalf that the decree is null and void. Moreover, the petitioners have purchased their share during the pendency of the suit, therefore, the decree is binding upon them. Hence, this contention of the petitioners that decree against the minors is not sustainable in the eyes of law is merit less, hence rejected.

So far as the second point is concerned, it is contended that the petitioners are subsequent bona fide purchasers and decree cannot be executed against them. As such, they cannot raise the objection. They were conscious of the fact that they are purchasing the land in respect of which status quo order had already been passed. Not only this, they had purchased the land during the pendency of the suit. So the principle of lis pendens will apply in their case. They cannot be considered as bona fide purchasers as pendency of suit itself operates at constructive notice. As such, this contention of the petitioners is also rejected. In view of this, I do not find any merit in this revision petition, hence dismissed.