Pamela Manmohan Singh vs Asha Arora

J.D. Kapoor, J.—This case has a chequered history. On the one hand the daughter of the deceased decree-holder has filed the instant execution petition for possession of the property which has been sold by none else but the son of the deceased decree-holder to the objectors and on the other hand, the said son Shri K.V. Kohli has filed the instant application under Order 1 Rule 10, CPC for being imp leaded as co-decree holder.

Facts as culled out from the pleadings of various litigations that took place between the objectors, respondents, applicant and the decree-holder need to be summed up in brief for deciding the application in the proper prospective. The same are as under.

The suit for possession bearing No. 1080/79 was filed by the deceased decree-holder Dr. (Mrs.) Raseel Kohli against one Khairati Lal. The suit was decreed. The judgment-debtor Khairati Lal had given the undertaking that he shall directly hand over the possession of the suit premises to the decree-holder Dr. Raseel Kohli. Khairati Lal also gave the undertaking not to alienate the property.

Instead of delivering he possession directly to the decree-holder Dr. Raseel Kohli, Khairati Lal handed over the possession to M/s. Texla Service Centre, the objectors. Before the decree could be executed Dr. Raseel Kohli died. the applicant Mr. K.V. Kohli made the application for the substitution representing that he was the sole legal heir of Dr. Raseel Kohli. the applicant K.V. Kohli was substituted as a decree-holder. On 11th August, 1989, execution petition was dismissed in default and was never revived presumably for the reason that Shri K.V. Kohli had decided to sell the suit property to M/s. Texla Service Centre. And on 6th December, 1989 K.V. Kohli executed three sale deeds in respect of suit properties in favor of M/s. Texla Service Centre.

The suit bearing No. 695/90 was filed by the daughter of the deceased decree-holder for cancellation of the sale deeds executed by her brother K.V. Kohli on 6th December, 1988. However injunction order dated 14th March, 1990 was passed restraining the defendants from raising any construction on the suit property or parting with the possession or alienating the suit property.

Earlier to this, petitioner Pamela Manmohan Singh, the daughter of the deceased decree-holder had filed a suit for declaration and injunction where she did not set up the plea of any Will in her favor but at the same time sought declaration and permanent injunction against the applicant K.V. Kohli claiming herself to be the owner of half of the suit property. However in the said suit Pamela Manmohan Singh disclosed in the replication only that she had now laid hand upon a Will executed by the deceased decree-holder in her favor. The said suit was not pursued by her and was dismissed. On the basis of the said Will she filed a probate application bearing No. 106/89 which has now been renumbered as Pr. 19/97.

The Texla Service Centre and its Directors have filed the objections claiming themselves as owner of the suit property in their own right by virtue of having purchased it from K.V. Kohli, one of the legal heirs of the deceased decree-holder.

However Shri K.V. Kohli, the applicant also filed a probate petition on 2nd December, 1987 i.e. after the filing of the application under Order 22 Rule 4, CPC in the execution petition for his substitution as decree-holder claiming that the deceased decree-holder had also executed a Will bequeathing the suit property in his favor. However the factum of the execution of the Will was not disclosed in the application under Order 22 Rule 4, CPC which was filed hardly 27 days earlier to the said probate petition.

This is an independent execution application filed by Pamela Manmohan Singh, the daughter of the deceased decree-holder claiming herself as the owner of the 2/3rd of the suit property on the basis of the Will which she had claimed to have discovered at the time of the filing the replication in the suit for declaration filed by her against the applicant K.V. Kohli.

As is apparent from the above conspectus of facts, the applicant K.V. Kohli has moved the instant applicant on for his impleadment as a decree-holder inspire of the fact that he had already sold the suit property to the objectors and that too after allowing the execution petition dismissed in default where he got himself substituted as a decree-holder on the premise and representation that he was the sole legal heir of the deceased. In other words the interests of the applicant K.V. Kohli and that of the objectors are common as in case the present decree-holder in the instant execution petition succeeds in proving that the sale of the suit property by K.V. Kohli to the objectors was illegal and without any authority, the decree in question will become executable.

Whatever may be the claims and counter claims of the parties the fact remains that at first instance the applicant K.V. Kohli got himself substituted as decree-holder in an execution filed by the original decree-holder who was his mother representing that he was the sole legal heir whereas Pamela Manmohan Singh was another legal heir of the deceased decree-holder and at second instance K.V. Kohli, the applicant sought probate on the basis of the Will. The seesaw game did not stop here. Pamela Manmohan Singh filed the suit for declaration against her brother but at the time of the filing of the suit she was not aware whether the decree-holder had executed a Will in her favor. When the said Will came to her notice she also filed a probate.

The Will set up by Pamela Manmohan Singh, the petitioner in the instant execution proceedings makes her owner of 2/3rd share of the suit property and the applicant K.V. Kohli, the owner of the remaining 1/3rd suit property.

Now the question arises whether K.V. Kohli has the legal locus to be imp leaded as a co-petitioner i.e. decree-holder in the execution proceedings under the provisions of Section 146 read with Order 21 Rule 16, CPC. Section 146 provides as under:

Proceedings by or against representatives: Save as otherwise provided by this Code or by any law for the time being in force, whereby any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

Order 21 Rule 16, CPC provides:

Application for execution by transfer of decree-Where a decree or, if a decree has been passed jointly in favor of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such holder;

Broadly the principles for impleadment of a party under the provisions of Order 1 Rule 10, CPC are on the same parameters as envisaged in Section 146 and Order 21 Rule 16, CPC i.e. whether the presence of a party either as a plaintiff or defendant is necessary to enable the Court effectually and completely adjudicate upon the settle all the questions involved in the proceedings or not.

The impleadment of the applicant as co-petitioner is being resisted mainly on the ground that after having got himself substituted as a decree-holder though on misrepresentation and having got the execution petition dismissed in default and thereafter having sold the suit property by way of independent sale deeds he has fortified his right to be imp leaded as a decree-holder.

On the contrary the applicant has sought his impleadment even on the strength of the Will set up by the petitioner Pamela Manmohan Singh whereby 2/3rd shares were bequeathed in favor of Pamela Manmohan Singh and 1/3rd share in favor of the applicant.

So far as the probate proceedings filed by petitioner and the applicant are concerned these have to be ascertained independently and what is to be considered for the purpose of instant application is whether the applicant has any right to be imp leaded as a decree-holder or respondent. It is contended that since 1/3rd share in the suit property has been bequeathed by the deceased decree-holder in favor of the applicant so his impleadment is necessary for deciding the execution of the decree effectually and completely.

As regards the instant execution petition which has been filed independently by the petitioner Pamela Manmohan Singh, the applicant is at the most entitled to by imp leaded as respondent in support of his plea that he had the sole right to sell the suit property and secondly that as per the Will set up by the petitioner he is the owner of 1/3rd share of the suit property. His right to be imp leaded as decree-holder was forfeited firstly after he got himself substituted in place of the original decree-holder on the representation that he was the sole legal heir, secondly that he did not revive the execution petition which was dismissed in default and thirdly that after the execution petition was dismissed in default, he had sold the entire suit property to M/s. Texla Service Centre.

Thus a plea raised by the applicant that he should be imp leaded as a decree-holder is no more available to him as there is nothing to be executed by him as he has already disposed the suit property by way of sale and that too after the dismissal of the execution petition in which he was substituted as decree-holder.

Since the objector''s claim of being the owner of the suit premises also flows from the claim of the applicant that he was the absolute owner of the suit property at the time of the execution of the sale deeds the fait of the objections also depends upon the aforesaid claim of the applicant.

However to decide the aforesaid controversy particularly in view of the claim of the petitioner herself that she has been bequeathed 2/3rd share of the suit property, impleadment of the applicant as respondent is necessary to effectually and completely adjudicate upon and settle the questions involved in the execution proceedings for the limited purpose of executing the decree.

As a result, the applicant is allowed to be imp leaded only as respondent and not as a co-decree holder.

Ordered accordingly.