Swaran Singh and Others vs Gurdial Singh and Others

T.H.B. Chalapathi, J.—This appeal is directed against the decree and judgment of the learned Additional District Judge, Ludhiana in Civil Appeal No. 13 of 1996 dated 26.3.1998.

The defendants are the appellants. The plaintiff-respondent filed the suit for specific performance of an agreement of sale dated 26.8.1989 executed by one Bhajan Singh or in the alternative for recovery of a sum of Rs. 4,000/- as damages. According to the plaintiff,. Bhajan Singh agreed to sell the suit property on 26.8.1989 and executed an agreement of sale in favour of the plaintiff who received a sum of Rs. 2,000/- as earnest money. Under the agreement the sale deed was to be executed on 30.11 1990 But before the date fixed for execution of the sale deed, Bhajan Singh died on 5.10.1990. According to the plaintiff, the defendants are his legal heirs.

The defendants, in their written statement, inter alia, contended that the sale deed is null and void and without any consideration and not binding upon their rights. They further pleaded that Bhajan Singh sold 5 kanals 15 marlas of the property in favour of Gurnam Singh under two sale deeds dated 16.7.1971 and 3.8.1971 and the land measuring 4 kanals 18-5/8 marlas in favour of Gurbachan Kaur alias Bachni, defendant No. 5, on 18.12.1975 and no land was standing in his name at the time of execution of the alleged agreement of sale in favour of the plaintiff and that Bhajan Singh was not competent to sell the remaining land measuring 2 kanals and 1 marla.

After framing appropriate issues and considering the evidence on record, the learned Additional Civil Judge (Senior Division), Samrala, by his judgment dated 10.1.1996, declined the relief of specific performance to the plaintiff and decreed the suit for alternative relief for recovery of Rs. 2,000/- paid by the plaintiff to Bhajan Singh. Against the said decree and judgment of the trial Court, both the plaintiff and the defendants preferred appeals to the learned Additional District Judge, Ludhiana, in Civil Appeal Nos. 12 and 13 of 1996. By the impugned decree and judgment, the learned Additional District Judge modified the interest from 6% per month to 6 % per annum.

Aggrieved by the decree and judgment of the learned Additional District Judge, Ludhiana, the defendants preferred this appeal and the learned counsel appearing on behalf of the appellants contended that both the Courts erred in passing the decree against the defendants in their personal capacity. According to them, they are not liable to pay the decretal amount in their personal capacity.

Learned counsel for the appellants further argued that they did not inherit any property of Bhajan Singh and, therefore, they are not liable to pay the decretal amount.

The learned counsel for the respondent admitted the preposition of law.

Admittedly, the plaintiff is entitled to recover the earnest money with interest at the rate of 6% per annum from the estate of the deceased Bhajan Singh. Therefore, the decree must have been passed for recovery of Rs. 2,000/- with proportionate costs with interest at the rate of 6% per annum from the estate of the deceased or the property left behind by the deceased and not against the defendants in their personal capacity. It is open to the decree holder to proceed against the property left behind by Bhajan Singh.

Learned counsel for the appellants argued that no property has been left behind by Bhajan Singh and he has already sold the property during his life time to others. Therefore, there is no question of executing the decree but this is a matter to be decided in the execution proceedings. If the plaintiff decree-holder proceeds, it is always open to the defendants or any other person claiming right, title or interest in the said property to raise objections against the execution of the decree by filing a claim petition under Order XXI Rule 58 of the CPC but it cannot be said at this stage that no decree can be passed on the ground that the decree is not executable since the deceased did not have any property at the time of his death. In fact, this is not the issue in the suit.

Therefore, I modify the decree that the plaintiff is entitled to recover the decretal amount from the estate of the deceased and make it clear that the defendants-appellants are not liable to pay the same in their personal capacity. The appeal, stands disposed of accordingly.