Raghunath Rai and Another vs Shri Jageshwar Parshad Sharma

Rajiv Sahai Endlaw, J.—Execution is sought of the decree in a suit for specific performance of an Agreement of Sale of immovable property

directing:

(i) execution of a Sale Deed in favour of the plaintiffs/Decree Holders after obtaining permission/clearances from the authorities as may be required

for conveying the title and delivery of possession of the property agreed to be sold to the plaintiffs/decree holders;

(ii) defendant no. 2 to join the defendant no. 1 in completing the sale, free from all encumbrances;

(iii) defendants to deposit the documents of title relating to the property in this Court;

(iv) plaintiffs/decree holders to deposit in this Court within one month, the balance sale consideration of Rs. 1,00,000/-; and,

(v) upon the failure of the defendants to execute the Sale Deed and complete the sale, the sale thereof though the agency of the Court.

Notice of the execution petition was ordered to be issued to the judgment debtor and upon the judgment debtor failing to appear inspite of service,

warrants of possession of the property, delivery of possession whereof was directed in the decree, issued and possession has been so delivered to

the plaintiffs/decree holders.

The legal representatives of the judgment debtor have filed EA Nos. 62-63/2010 objecting to the delivery of possession and seeking restoration

of possession and for condonation of delay in applying thereof.

It is the contention of the legal representatives of the judgment debtor that the judgment debtor died on 18.02.2008 and the plaintiffs/decree

holders who are residing in the same property were fully aware thereof but while filing this execution on 18.08.2009, filed the same against a dead

judgment debtor and the execution is thus bad and the possession ought to be restored to them. The counsel for the legal representatives of the

judgment debtor has argued that the execution against a dead judgment debtor was a nullity.

The counsel for the decree holder has handed over in the Court the judgment dated 20.04.2011 of the Division Bench of this Court in Cont.

Cas. (Crl.) No. 3/2010 filed by the legal representatives of the judgment debtor against the plaintiffs/decree holders on the same facts and which

was dismissed inter alia observing that no notice even of the execution petition was required to be issued. It is stated that the said judgment has

attained finality and in the light thereof the said objection does not arise.

The counsel for the legal representatives of the judgment debtor has not argued anything in opposition on the said aspect.

I may even otherwise state that the principle applicable to suits, of a suit against a dead person being a nullity is not applicable to execution. The

Supreme Court in V. Uthirapathi Vs. Ashrab Ali and Others, held that penalty of abatement does not attach to execution proceedings and

execution petition remains pending on the file of the executing court notwithstanding the death of the judgment debtor and non

substitution/impleadment of his heirs and cannot be dismissed as abated. Reference in this regard can also be made to judgments of this Court in

Thakuri Bai Vs. Laxmi Chand and Others, and The Board of Trustees of The Port of Bombay Vs. M/s A. Kumar and Co. and Others, Reference

can also be made to N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Others, where execution petition against a wrong person as

legal representative, if bona fide was held to be not bad and to Mahadeo and Others Vs. Shantilal and Others, and Sarat Chandra Deb and Others

Vs. Bichitrananda Sahu and Others, Gnanambal Ammal Vs. Veerasami Chetty and Others, Shunmugham Chettiar Vs. K.A. Govindasami Chettiar

and Others, to the same effect. It is also significant to mention that Section 50 of the CPC uses the expression ""may"" while permitting execution

against the legal representatives. It is also worth mentioning that the decree in the present case was with respect to a property and not personally

against any legal representative and for this reason also the filing of the execution in the name of the deceased judgment debtor has not affected the

legal representative in any manner whatsoever. Reference in this regard can also be made to Balwant Singh Vs. Manak Mal AIR 1959 Raj. 91

also laying down that execution application against a deceased judgment debtor is not a nullity.

There is thus no merit in the said objection which is dismissed.

On the last date of hearing i.e. 01.05.2013, the Registry was directed to report whether the plaintiff had deposited the sum of Rs. 1,00,000/- in

terms of the decree as directed. It is reported that the said sum of Rs. 1,00,000/- was deposited on 29.07.1999 i.e. within one month of the

decree dated 16.07.1999.

There is no other objection now to execution of the decree by directing the execution of the Sale Deed in favour of the plaintiffs/decree holders.

The counsel for the plaintiffs/decree holders states that the defendant no. 2 was the Punjab National Bank (PNB) in whose favour the

deceased defendant no. 1 was claiming to have created equitable mortgage with respect to the property but which claim was subsequently found

to be false and thus the sale is now to be executed by the legal representatives of the deceased defendant no. 1/judgment debtor only and all three

of whom are on record.

The counsel appearing for the legal heirs of the judgment debtor however states that he has the authority only from one of the legal heirs viz.

Mr. Sunil Sharma and the said Sh. Sunil Sharma is willing to join in the execution of the said Sale Deed in compliance of the decree.

The plaintiffs/decree holders have also filed IA No. 434/2012 averring that as per the Agreement to Sell, the property tax and other charges till

the date of delivery of possession were to be borne by the seller i.e. the judgment debtor but the plaintiffs/decree holders have paid approximately

Rs. 69,000/- on account of said house tax and electricity Bills and seeking adjustment thereof out of the sum of Rs. 1,00,000/- lying deposited in

this Court.

However on request of the Court, the counsel for the plaintiffs/decree holders has fairly not pressed the said relief. The said request has been

made since the amount of Rs. 1,00,000/- remained in CCD account only which is a non interest bearing account.

The execution petition is disposed of with the following directions;

(i) The plaintiffs/decree holders to within two weeks file a draft Sale Deed to be executed by the personnel of this Court on behalf of the legal

representatives of the judgment debtor for approval of the Joint Registrar;

(ii) Sh. Sunil Sharma, legal representative of the judgment debtor would be entitled to join in the execution of the said Sale Deed.

(iii) The Sale Deed else on behalf of the legal representatives will be executed by Mr. Javed Khan (Mob. 9958125170), Court Master/Court

Commissioner on any Saturday and got registered at the concerned Sub Registrar.

(iv) The fee of the Court Commissioner is fixed at Rs. 15,000/- besides out of pocket expenses to be borne out by the plaintiffs/decree holders.

The counsel for the legal representative namely Shri Sunil Sharma of the judgment debtor states that the original documents are not in his

custody and are with the PNB only.

The execution petition is disposed of. The decree holder to appear before the Joint Registrar for approval as aforesaid of the draft Sale Deed

on 27th May, 2013. After the Sale Deed has been approved, the stamp duty for the same be purchased and the Sale Deed engrossed on the said

stamp paper be executed as aforesaid.