Rajasthan High Court – Jodhpur
Smt. Vijay Laxmi And Anr vs Pushpchand And Ors on 29 January, 2025
Author: Birendra Kumar
Bench: Birendra Kumar
[2025:RJ-JD:1635] (1 of 20) [CFA-176/2010]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 176/2010
1. Smt. Vijay Laxmi wife of Shri Adarsh Kumar Bhansali, aged
about 59 years, resident of Pushp Bhawan, Railway Hospital
Road, Jodhpur.
2. Smt. Madhu Rathi wife of Shri Shyamsunder Rathi, aged about
52 years, resident of Kabutaron Ka Chowk, Jodhpur
----Appellants
Versus
1. Pushpchand son of Shri Sujanmal/ by caste Oswal Sancheti,
resident of D-5 Shastri Nagar, Jodhpur.
2. Legal representatives of Kalu @Kalia son of Daila Ram:-
2/1 Basti Ram son of Late Shri Kalu Ram @ Kalia
2/2 Ramlal son of Late Shri Kalu Ram @ Kalia
2/3 Bhalla Ram son of Late Shri Kalu Ram @ Kalia
2/4 Dhalla Ram son of Late Shri Kalu Ram @Kalia
All are by caste Kumhar, resident of Banerio Ki Dhani, Jhalamand
Choraha, Basani Chouhan, Jodhpur.
3. Legal representatives of Pabu Ram @ Pabuda son of Shri
Chaila Ram:-
3/1 Smt. Chanda Devi wife of late Shri Pabu @ Pabuda
3/2 Raju Ram son of late Shri Pabu @ Pabuda
3/3 Shayamlal son of late Shri Pabu @ Pabuda
3/4 Satya Narayan son of late Shri Pabu @ Pabuda
3/5 Naina Ram son of late Shri Pabu @ Pabuda
All are by caste Kumhar, resident of Banerio Ki Dhani, Jhalamand
Choraha, Basani Chouhan, Jodhpur.
4. Legal representatives of Prema Ram son of Shri Kalu Ram:-
4/1 Uda Ram son of Late Shri Prema Ram
4/2 Prahlad son of Late Shri Prema Ram
4/3 Pappuram son of Late Shri Prema Ram
4/4 Sampat son of Late Shri Prema Ram
All are by caste Kumhar, resident of Hem Nagar, Banuo Ki
Dhaniya, Jhalamand, Jodhpur. (EXEMPTED)
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5. Smt. Sunita wife of Shri Ratanchand Patwa, resident of
Kishore Kunj, Jain Street, Sarafa Bazar, Jodhpur
6. Smt. Anita Mehta wife of Shri Mahendra Mal Jain, resident of
Jain Street Sarafa Bazar, Jodhpur.
7. Smt. Rekha wife of Shri Suresh Kankaria, resident of Jalate
Deep Gali, Jodhpur.
8. Smt. Sarla wife of Shri Prakaschand, resident of Manak
Nowas, Street Near SBBJ, Jalori Gate, Jodhpur.
9. Smt. Suman Devi wife of Shri Suresh Ranka, resident of 119,
1st B Road, Sardarpura, Jodhpur.
10. Ratanchand son of Shri Kanchand Patwa, resident of Kishore
Kunj, Jain Street, Sarafa Bazar, Jodhpur.
11. Smt. Manohari Devi wife of Shri J.L. Kankaria, resident of
Bus Stand, Bhopalgarh, District-Jodhpur.
12/Smt. Deepmala @ Sonu wife of Shri Susheel Jain, resident of
A-52, Shastri Nagar, Jodhpur.
----Respondents
For Appellant(s) : Mr. Sajjan Singh Rajpurohit
Mr. Prashant Tatia
Mr. Ankit Somani
For Respondent(s) : Dr. Sachin Acharaya, Sr. Advocate
assisted by Mr. Rakesh Chotiya
Mr. Govind Suthar
Mr. Saransh Vij through VC.
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Reserved on : 02.01.2025
Pronounced on : 29.01.2025
1. By order dated 10.02.2010 passed in Civil Original Suit
No.282/2004 (58/97), the learned trial Judge has rejected the
plaint under Order VII Rule 11 C.P.C. Since rejection of plaint is a
‘decree’ as defined in Section 2 of the Code of Civil Procedure, this
appeal has been filed under Section 96 of C.P.C. challenging the
aforesaid rejection.
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2. A brief background of the case is that respondent No.1
herein namely Pushpchand, who was defendant No.1 of the suit
entered into an agreement to purchase Khasra No.310 in village
Kudi Bhagtasani, District and Tehsil Jodhpur from Original
Defendant No.2-Late Kalu Ram @ Kalia and Original Defendant
No.3- Late Pabu Ram @ Pabuda, both sons of late Chaila. On
agreement not being performed by Original Defendant Nos.2 and
3, the respondent No.1-Pushpchand brought a suit for specific
performance of contract vide Civil Suit No.71/1991 on 30.05.1991.
During pendency of the suit, the said Kalu Ram sold his share in
Khasra No.310 to 63 persons including the appellants on
29.06.1992 and the sale deed was registered on 07.10.1992. The
purchasers got mutated in revenue record on 24.2.1993. Late Kalu
Ram appeared in Suit No.71/1991 and filed written statement but
did not disclose in the written statement that he had sold the suit
property to the present appellants and others. However, by a
separate petition, Kalu Ram informed the Court that he is an
illiterate person and when the plaintiff was not performing his
part of the contract, he already sold his share in the aforesaid
Khasra to 63 persons.
3. Thereafter, plaintiff-Pushpchand filed an application for
disclosure of the name of lis pendens purchasers but late Kalu
Ram could disclose name of a few and stated in the petition that
since the sale-deed is a registered document, plaintiff can obtain
certified copy and get name of the purchasers. But the course
adopted by the trial Court was that defence of Kalu Ram was
rejected.
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4. Pabu Ram filed separate written statement denying his
signature on the separate agreement claimed by plaintiff-
Pushpchand and clearly stated that he had not sold his share in
the property to the plaintiff, however left the pairvi of the case and
suit was decided ex parte against him. Since Kalu Ram had not
disclosed the name of the lis pendens purchaser, his defence was
struck down and thereafter Kalu Ram did not contest the suit.
5. Consequently, the suit was decreed in favour of plaintiff-
Pushpchand by judgment and decree dated 18.04.1996.
6. For execution of the decree, Misc. Execution Case
No.29/1996 was filed. The sale deed was executed in pursuance of
the decree and the Executing Authority of the Court effected
delivery of possession to the plaintiff on 21.06.1997 on paper in
absence of Kalu. In the present suit, the plaintiffs/appellants have
stated that cause of action arose on 21.06.1997 when the plaintiff
attempted to forcefully dispossessed them.
7. Thereafter, almost all the 63 purchasers by different petitions
filed under Order I Rule 10 C.P.C. desired to be impleaded in the
execution proceeding as party. But all the petitions were rejected
on 31.7.1997 on the ground that neither they were decree holder
nor judgment debtor.
8. Thereafter, the plaintiffs and performa respondents filed Civil
Suit No.58/1997 re-numbered as Civil Suit No.282/2004 praying
therein for declaration that judgment and decree dated
18.04.1996 passed in Civil Suit No.71/1991 was collusive, invalid
and void obtained by playing fraud and is not binding on the
plaintiffs to the extent of their interest. Further prayer was for
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injunction against the defendants not to disturb possession of the
plaintiffs.
9. In the suit, respondent No.1 filed an application under Order
VII Rule 11 C.P.C. for rejection of the plaint and the plaint was
rejected by the order under challenge on the ground that the
plaintiffs/appellants herein had remedy under Order XXI Rule 97
and 99 C.P.C. before the Execution Court and not by a separate
suit, hence, the plaint was barred under the law.
10. Mr. Sajjan Singh Rathore, learned counsel for the appellants
contends that in fact no remedy was available to the appellants in
the execution proceeding. Assuming any remedy was available,
their prayer for impleadment as party in the execution proceeding
was already refused by the Execution Court. Learned counsel
submits that since the appellants and other purchasers were not
party to the earlier suit, they had three remedies available in law
against the judgment and decree passed in earlier suit.
(a) They could have challenged the said judgment in
appeal under Section 96 of C.P.C.
(b) They could have asserted their right, title and
interest over the property in a separate suit as has
been done in the present case.
(c) They could have contested the matter before the
Execution Court if the law permits and the Execution
Court would have permitted them to contest.
11. Learned counsel for the appellants next contends that an
agreement to sale does not create any title, rather a weak right is
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created by the said agreement. Since the appellants were
bonafide purchaser for consideration without notice of the earlier
agreement, their right is protected under Section 19(b) of the
Specific Relief Act against any direction for specific performance of
contract in respect of the same property. If the appellants would
have been impleaded in the first suit, they could have placed the
entire things on the record and the trial Judge could have awarded
alternative remedy to the plaintiff of the first suit as prayed for by
the plaintiff.
The relevant portion of Section 19 of the Specific Relief Act is
being reproduced below :
“19. Relief against parties and persons claiming
under them by subsequent title.- Except as otherwise
provided by this Chapter, specific performance of a
contract may be enforced against-
(a) either party thereto;
(b) any other person claiming under him by a title
arising subsequently to the contract, except a transferee
for value who has paid his money in good faith and
without notice of the original contract;”
Evidently, specific performance of contract may not have
been ordered against a transferee for value, who had paid his
money in good faith and without notice of the original contract, as
claimed by the appellants herein.
12. Dr. Sachin Acharya, learned Senior Counsel for the
respondents contends that since the appellants were transferee
pendent lite, their right was subject to result of the suit as
stipulated under Section 52 of the Transfer of the Property Act. If
the suit would have been decided in favour of their transferor, they
could have claimed their right as they entered into the shoes of
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their transferor. In case the suit was decided against the transferor
of the appellants, as in the present case, they have nothing to
assert and establish especially by filing a separate suit for the
same property and cause.
13. Learned senior counsel next contends that there were 63
purchasers. Many others did not challenge the decree passed in
the first suit and some others left the company of the appellants in
this appeal though they were plaintiffs in the suit. The vendors of
the appellant was conscious about the earlier agreement,
therefore, the appellants have no cause in this matter.
Only for the reason that some of the purchasers left to
pursue their claim, it cannot be thrust upon the present appellants
to not to pursue their genuine cause.
14. Learned Senior Counsel next contends that the only remedy
available to the appellants, the purchasers pendent lite is to be
adjudicated before the Execution Court and the Execution Court
shall decide the claim in the way as adjudicable in the suits after
framing of the issues, as separate suit is already barred under
Rule 101 of Order 21 CPC.
15. Learned Senior Counsel has drawn attention of this Court to
the judgment of Hon’ble Supreme Court in Brahmdeo
Chaudhary Vs. Rishikesh Prasad Jaiswal & Ors., reported in
(1997) 3 SCC 694. In the said judgment in para-5, Hon’ble
Supreme Court observed as follows :-
“5. In short the aforesaid statutory provisions of Order XXI lay
down a complete code for resolving all disputes pertaining to(Downloaded on 29/01/2025 at 09:58:48 PM)
[2025:RJ-JD:1635] (8 of 20) [CFA-176/2010]execution of decree for possession obtained by a decree-holder and
whose attempts at executing the said decree meet with rough
weather. Once resistance is offered by a purported stranger to the
decree and which comes to be noted by the Executing Court as well
as by the decree-holder the remedy available to the decree-holder
against such an obstructionist in only under Order XXI Rule 97 sub-
rule (1) and he cannot bypass such obstruction and insist on re-
issuance of warrant for possession under Order XXI Rule 35 with
the help of police force, as that course would amount to bypassing
and circumventing the procedure laid down under Order XXI Rule
97 in connection with removal of obstruction of purported strangers
to the decree. Once such an obstruction is on the record of the
Executing Court it is difficult to appreciate how the Executing Court
can tell such obstructionist that he must first lose possession and
then only his remedy is to move an application under Order XXI
Rule 99, CPC and pray for restoration of possession. The High
Court by the impugned order and judgment has taken the view that
the only remedy available to a stranger to the decree who claims any
independent right, title or interest in the decretal property is to go by
Order XXI Rule 99. This view of the High Court on the aforesaid
statutory scheme is clearly unsustainable. It is easy to visualise that
a stranger to the decree who claims an independent right, title and
interest in the decretal property can offer his resistance before
getting actually dispossessed. He can equally agitate his grievance
and claim for adjudication of his independent right, title and interest
in the decretal property even after losing possession as per Order
XXI Rule. Order XXI Rule 97 deals with a stage which is prior to
the actual execution of the decree for possession wherein the
grievance of the obstructionist can be adjudicated upon before actual
delivery of possession to the decree-holder. While Order XXI Rule
99 on the other hand deals with the subsequent stage in the
execution proceedings where a stranger claiming any right, title and
interest in the decretal property might have got actually dispossessed
and claims restoration of possession on adjudication of his
independent right, title and interest dehors the interest of the
judgment-debtor. Both these types of enquiries in connection with
the right, title and interest of a stranger to the decree are clearly
contemplated by the aforesaid scheme of Order XXI and it is not as(Downloaded on 29/01/2025 at 09:58:48 PM)
[2025:RJ-JD:1635] (9 of 20) [CFA-176/2010]if that such a stranger to the decree can come in the picture only at
the final stage after losing the possession and not before it if he is
vigilant enough to raise his objection and obstruction before the
warrant for possession gets actually executed against him. With
respect the High Court has totally ignored the scheme of Order XXI
Rule 97 in this connection by taking the view that only remedy of
such stranger to the decree lies under Order XXI Rule 99 and he has
no locus standi to get adjudication of his claim prior to the actual
delivery of possession to the decree-holder in the execution
proceedings. The view taken by the High Court in this connection
also results in patent breach of principles of natural justice as the
obstructionist, who alleges to have any independent right, title and
interest in the decretal property and who is admittedly not a party to
the decree even though making a grievance right in time before the
warrant for execution is actually executed, would be told off the
gates and his grievance would not be considered or heard or merits
and he would be thrown off lock, stock and barrel by use of police
force by the decree-holder. That would obviously result in
irreparable injury to such obstructionist whose grievance would go
overboard without being considered on merits and such
obstructionist would be condemned totally unheard. Such an order
of the Executing Court, therefore, would fail also on the ground of
non- compliance with basic principles of natural justice. On the
contrary the statutory scheme envisaged by Order XXI Rule
97, CPC as discussed earlier clearly guards against such a pitfall and
provides a statutory remedy both to the decree- holder as well as to
the obstructionist to have their respective say in the matter and to get
proper adjudication before the Executing Court and it is that
adjudication which subject to the hierarchy of appeals would remain
binding between the parties to such proceedings and separate suit
would be barred with a view to seeing that multiplicity of
proceedings and parallel proceedings are avoided and the gamut laid
down by Order XXI Rules 97 and 103 would remain a complete
code and the sole remedy for the concerned parties to have their
grievances once and for all finally resolved in execution proceedings
themselves.”
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16. As noticed, the appellants filed an application under Order 1
Rule 10 CPC for impleadment in the execution proceedings
aforesaid but the learned Execution Court rejected their separate
petitions only for the reason that Order 1 Rule 10 CPC would apply
at the stage of suit and not at the execution proceedings. The
Execution Court should have considered the resistance and the
reasons for resistance made by the appellants which was to be
decided first before proceeding with the execution of the decree.
Once the Execution Court declined to hear the
plaintiffs/appellants, the only course left open to the appellants
was to file the present suit.
17. Since the trial Judge has rejected the plaint on the ground of
availability of remedy before the Execution Court, the first point
for consideration is whether really the appellants had effective
remedy before the Execution Court.
18. The provisions of Order XXI Rule 97 to 102 are being
reproduced below :
“97. Resistance or obstruction to possession of immovable
property.-
(1) Where the holder of a decree for the possession of
immovable property or the purchaser of any such property sold
in execution of a decree is resisted or obstructed by any person
obtaining possession of the property, he may make an
application to the Court complaining of such resistance or
obstruction.
[(2) Where any application is made under sub-rule (1), the Court
shall proceed to adjudicate upon the application in accordance
with the provisions herein contained.]
[98. Orders after adjudication-. (1) Upon the determination of
the questions referred to in rule 101, the Court shall, in
accordance with such determination and subject to the
provisions of sub-rule (2)
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(a) make an order allowing the application and directing that the
applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it
may deem fit.
(2) Where, upon such determination, the Court is satisfied that
the resistance or obstruction was occasioned without any just
cause by the judgment-debtor or by some other person at his
instigation or on his behalf, or by any transferee, where such
transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into
possession of the property, and where the applicant is still
resisted or obstructed in obtaining possession, the Court may
also, at the instance of the applicant, order the judgment-debtor,
or any person acting at his instigation or on his behalf, to be
detained in the civil prison for a term which may extend to
thirty days.]
[99. Dispossession by decree-holder or purchaser.- (1) Where
any person other than the judgment-debtor is dispossessed of
immovable property by the holder of a decree for the possession
of such property or, where such property has been sold in
execution of a decree, by the purchaser thereof, he may make an
application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed
to adjudicate upon the application in accordance with the
provisions herein contained.]
[100. Order to be passed upon application complaining of
dispossession.- Upon the determination of the questions
referred to in rule 101, the Court shall, in accordance with such
determination,-
(a) make an order allowing the application and directing
that the applicant be put into the possession of the property or
dismissing the application; or
(b) pass such other order as, in the circumstances of the
case, it may deem fit.]
[101. Question to be determined.- All questions (including
questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an application
under rule 97 or rule 99 or their representatives, and relevant to
the adjudication of the application, shall be determined by the
Court dealing with the application, and not by a separate suit
and for this purpose, the Court shall, notwithstanding anything
to the contrary contained in any other law for the time being in
force, be deemed to have jurisdiction to decide such questions.]
[102. Rules not applicable to transferee pendente lite.-
Nothing in rules 98 and 100 shall apply to resistance or
obstruction in execution of a decree for the possession of
immovable property by a person to whom the judgment-debtor
has transferred the property after the institution of the suit in
which the decree was passed or to the dispossession of any such
person.
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Explanation. In this rule, “transfer” includes a transfer by
operation eration of law.]”
19. Evidently, under Rule 97 aforesaid, only the decree holder or
purchaser of a property sold in execution of the decree can
approach the Court. Under Rule 99, any person other than the
judgment debtor dispossessed by the decree holder or purchaser
of the property sold in execution of the decree may make an
application to the Court complaining of such dispossession. Rule
102 specifically stipulates that nothing in Rule 98 and 100 shall
apply to resistance or obstruction made by a person to whom the
judgment debtor has transferred the property after the institution
of the suit in which the decree was passed or to the dispossession
of any such person.
The reason is obvious that purchasers pendente lite enter
into the shoes of their vendor and their interest in the property
would be subject to the result of the suit as per Section 52 of the
Transfer of the Property Act. Hence, they cannot approach under
aforesaid Rules or any other Rules of Order 21 CPC at the stage of
execution of the decree.
20. This issue was considered in several cases by the Hon’ble
Supreme Court. In the case of Jini Dhanragir and Anr. Vs.
Shibu Mathew and Anr. reported in 2023 SCC Online SC 643
relied upon by learned counsel for the respondents, the Hon’ble
Supreme Court considered earlier judgments referred in Para
Nos.18 to 23, which are being reproduced hereunder :
“18. In Bhanwar lal v. Satyanarain (1995) 1 SCC 6, this Court held
that when any person, whether claiming derivative title from the(Downloaded on 29/01/2025 at 09:58:48 PM)
[2025:RJ-JD:1635] (13 of 20) [CFA-176/2010]judgment-debtor or sets up his own right, title or interest de hors
the judgment debtor, the executing court whilst executing the
decree, in addition to the power under Rule 35(3), is empowered to
conduct an enquiry whether the obstruction by that person is legal
or not.
19. This Court in Noorduddin v. Dr. K.L. Anand (1995) 1 SCC 242
reiterated that the executing court was bound to adjudicate the
claim of an obstructionist and to record a finding allowing or
rejecting the claim which was laid before the executing court, the
person being neither a party to the earlier proceedings nor the
decree being passed against him.
20. Yet again, in Babulal v. Raj Kumar (1996) 3 SCC 154, this
Court after setting aside the order impugned held that a
determination is required to be conducted under Order XXI Rule 98
before removal of the obstruction caused by the objector and a
finding is required to be recorded in that regard. It was also held
that the executing court was required to determine the question
relating to when the appellants had objected to the execution of the
decree as against those appellants who were not parties to the
decree for specific performance.
21. The decision in Brahmdeo Chaudhary (1997) 3 SCC 694 cited
by Mr. Chitambaresh, is also to the same effect.
22. Considering the scheme of Order XXI Rules 97 to 106, this
Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust (1998) 3 SCC
723 found it difficult to agree with the High Court that resistance or
obstruction made by a third party to the decree put to execution
cannot be gone into under Order XXI Rule 97. Referring to Rules
97 to 106, this Court further held that they were intended to deal
with every sort of resistance or obstruction raised by any person
and that Rule 97(2) made it incumbent on the court to adjudicate
upon such complaint in accordance with the procedure laid down.
This Court also proceeded to observe:
“It is clear that executing court can decide whether the
resistor or obstructer is a person bound by the decree and he refuses
to vacate the property. That question also squarely falls within the
adjudicatory process contemplated in Order 21, Rule 97(2) of the
Code. The adjudication. mentioned therein need not necessarily
involve a detailed enquiry or collection of evidence. Court can
make the adjudication on admitted facts or even on the averments
made by the resistor. Of course, the Court can direct the parties to
adduce evidence for such determination if the Court deems it
necessary”.
23. The long line of precedents notwithstanding, it is indeed true
that in terms of the ordainment of Rule 102 of Order XXI, Rules 98
and 100 thereof would not apply to resistance or obstruction in
execution of a decree for the possession of Immovable property by
a person to whom the judgment-debtor has transferred the property
after the institution of the suit in which the decree was passed”.
21. In subsequent paragraph, the Supreme Court cautioned
when transfer was during the period when the suit was dismissed
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for default and prior to restoration, the transfer was affected when
there was no pending lis.
Evidently, in the case on hand, the transfer in favour of the
plaintiff-appellant was during pendency of the earlier suit, hence,
the provisions of the execution proceeding and remedy there at
would not be available to the plaintiff-appellant in view of Rule 102
CPC. Even if it was available, after rejection of their prayer for
impleadment in execution proceedings, fresh suit was not barred
under the law.
22. Furthermore, the prayer made in the present suit for
declaration that the decree passed in the earlier suit was collusive
and ineffective one and not binding on the plaintiff could not have
been gone into by an Execution Court as Execution Court cannot
go beyond the decree. While considering executability of the
decree, the Execution Court could have only seen whether the
decree was void for being passed against a dead person or it was
passed by a Court having inherent lack of jurisdiction on the
subject-matter of the suit as such the decree being nullity but the
Execution Court cannot examine the correctness of the decree as
Appellate Court by considering evidence on collusiveness etc.
23. In the case of Dr.M. Parvathi and Others Vs. Sri
Penumatcha Satyanarayana Raju and Others (Appeal Suit
No.530/2011 decided on 09.04.2013), a Division Bench of Hon’ble
Andhra Pradesh High Court observed in Para 21 as follows :
“21. Before the trial Court as well as this Court, the
appellants pleaded that the decree obtained by the 1st
respondent in O.S.No.326 of 1998 is a collusive and
fraudulent one. If that were to be so, they could have(Downloaded on 29/01/2025 at 09:58:48 PM)
[2025:RJ-JD:1635] (15 of 20) [CFA-176/2010]filed a separate suit challenging that very decree. Mere
taking of a plea that the decree rendered by a Court of
competent jurisdiction is collusive or fraudulent would
not sub-serve that purpose. Unless specifically
challenged before it, no Court can address that issue.
Therefore, points framed in this appeal are answered
against the appellants.”
24. Therefore, evidently the trial Court has erred in law in
rejecting the plaint, which was not barred by any law.
25. Learned counsel for the respondents has relied on the
following judgments in support of his assertion that the plaintiff-
appellants had remedy before the execution Court.
Sr. Parties Citation Reference
No. Para
01 Brahmdeo Chaudhary v (1997) 3 SCC Para 5
Rishikesh Prashad Jaiswal and 694
ors.
02 Prabhudayal v Susheel Kumar (2000)1 RLW Para 11
and ors. 277
03 Ved Kumari v Municipal (2023)13 SCC Para 24
Corporation of Delhi. 651 Onwards
04 Asgar and ors. V Mohan (2020) 16 SCC Para 42
Varma and ors. 230 onwards
26. In none of the cases aforesaid, the issue involved was
whether a transferee pendent lite can resist the execution of the
decree under Order XXI Rule 97 and Rule 99 of the C.P.C. in view
of the specific bar contended under Rule 102 C.P.C.
27. Learned counsel for the respondent next relied on the
judgment of Hon’ble Supreme Court in Sopan Sukhdeo Sable &
Ors. Vs. Assistant Charity Commissioner & Ors., reported in
(2004) 3 SCC 137. Para 10 to 18 of the judgment is being
reproduced below :
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“10. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. (2003
(1) SCC 557) it was held with reference to Order VII Rule 11 of the
Code that the relevant facts which need to be looked into for
deciding an application thereunder are the averments in the plaint.
The trial Court can exercise the power at any stage of the suit –
before registering the plaint or after issuing summons to the
defendant at any time before the conclusion of the trial. For the
purposes of deciding an application under clauses (a) and (d) of
Order VII Rule 11 of the Code, the averments in the plaint are the
germane; the pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage.
11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and
Ors. (1998 (2) SCC 70) it was held that the basic question to be
decided while dealing with an application filed under Order VII
Rule 11 of the Code is whether a real cause of action has been set
out in the plaint or something purely illusory has been stated with a
view to get out of Order VII Rule 11 of the Code.
12. The trial Court must remember that if on a meaningful and not
formal reading of the plaint it is manifestly vexatious and meritless
in the sense of not disclosing a clear right to sue, it should exercise
the power under Order VII Rule 11 of the Code taking care to see
that the ground mentioned therein is fulfilled. If clever drafting has
created the illusion of a cause of action, it has to be nipped in the
bud at the first hearing by examining the party searchingly under
Order X of the Code.
(See T. Arivandandam v. T.V. Satyapal and Anr. (1977 (4) SCC 467)
13. It is trite law that not any particular plea has to be considered,
and the whole plaint has to be read. As was observed by this Court
in Roop Lal Sathi v. Nachhattar Singh Gill (1982 (3) SCC 487),
only a part of the plaint cannot be rejected and if no cause of action
is disclosed, the plaint as a whole must be rejected.
14. In Raptakos Brett & Co.Ltd. v. Ganesh Property (1998 (7) SCC
184) it was observed that the averments in the plaint as a whole have
to be seen to find out whether clause (d) of Rule 11 of Order VII
was applicable.
15. There cannot be any compartmentalization, dissection,
segregation and inversions of the language of various paragraphs in
the plaint. If such a course is adopted it would run counter to the
cardinal canon of interpretation according to which a pleading has to
be read as a whole to ascertain its true import. It is not permissible
to cull out a sentence or a passage and to read it out of the context in
isolation. Although it is the substance and not merely the form that
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has to be looked into, the pleading has to be construed as it stands
without addition or subtraction or words or change of its apparent
grammatical sense. The intention of the party concerned is to be
gathered primarily from the tenor and terms of his pleadings taken
as a whole. At the same time it should be borne in mind that no
pedantic approach should be adopted to defeat justice on hair-
splitting technicalities.
16. Submission of learned counsel for respondent No.2- trust was
that requirement of law being reading the plaint in its totality, the
appellants cannot take the plea that they would give up or relinquish
some of the reliefs sought for. That would not be permissible. The
plea clearly overlooks the basic distinction between statements of
the facts disclosing cause of action and the reliefs sought for. The
reliefs claimed do not constitute the cause of action. On the contrary,
they constitute the entitlement, if any, on the basis of pleaded facts.
As indicated above, Order VI Rule 2 requires that pleadings shall
contain and contain only a statement in a concise form of the
material facts on which the party pleading relies for his claim. If the
plea of Mr. Savant, learned counsel for the respondent-trust is
accepted the distinction between the statement of material facts and
the reliance on them for the claim shall be obliterated. What is
required in law is not the piecemeal reading of the plaint but in its
entirety. Whether the reliefs would be granted on the pleaded facts
and the evidence adduced is totally different from the relief claimed.
All the reliefs claimed may not be allowed to a party on the
pleadings and the evidence adduced. Whether part of the relief
cannot be granted by the Civil Court is a different matter from
saying that because of a combined claim of reliefs the jurisdiction is
ousted or no cause of action is disclosed. Considering the reliefs
claimed vis-a- vis the pleadings would not mean
compartmentalization or segregation, in that sense. The plea raised
by the respondent-trust is therefore clearly unacceptable.
17. Keeping in view the aforesaid principles the reliefs sought for in
the suit as quoted supra have to be considered. The real object of
Order VII Rule 11 of the Code is to keep out of courts irresponsible
law suits. Therefore, the Order X of the Code is a tool in the hands
of the Courts by resorting to which and by searching examination of
the party in case the Court is prima facie of the view that the suit is
an abuse of the process of the court in the sense that it is a bogus and
irresponsible litigation, the jurisdiction under Order VII Rule 11 of
the Code can be exercised.
18. As noted supra, the Order VII Rule 11 does not justify rejection
of any particular portion of the plaint. Order VI Rule 16 of the Code
is relevant in this regard. It deals with ‘striking out pleadings’. It has
three clauses permitting the Court at any stage of the proceeding to
strike out or amend any matter in any pleading i.e. (a) which may be
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unnecessary, scandalous, frivolous or vexatious, or, (b) which may
tend to prejudice, embarrass or delay the fair trial of the suit, or, (c)
which is otherwise an abuse of the process of the Court.”
28. There is no dispute in the legal principles laid down in the
above judgment, however, on the facts of this case it does not
appear that the present suit is frivolous and vexatious, having
imaginary cause of action, therefore, the case is not helping in the
facts and circumstances of this case.
29. Learned counsel for the respondent has next relied upon the
judgment of Hon’ble Supreme Court in Shipping Corporation of
India Ltd. Vs. Machado Brothers & Ors., reported in (2004)
11 SCC 168. In Shipping Corporation‘s case, the appellant had
appointed the respondent as the steamship agent of the appellant
for the purpose of handling tankers, bulk carriers and tramp
vessels, calling at the port of Tuticorin. It was the contention of
the appellant that the said agreement provided for termination of
the contract. On being dissatisfied with the conduct of the
respondent, invoking the clause of termination in the contract and
for the reasons mentioned therein, by a notice dated 23.2.1995,
the appellant terminated the said contract of agency. The
respondent challenged the said termination by way of a suit
seeking declaration that the order of termination was illegal, void
and unenforceable.
In that case, the suit was disposed of and the interlocutory
application was kept pending. The Hon’ble Supreme Court held
that once the suit was disposed of there was lack of bonafides
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after dismissal of an infructuous suit and continuation of an
interlocutory application.
30. Learned counsel for the respondent next relied on the
judgment of Hon’ble Supreme Court in Narinder Singh Bogarh
Vs. State of Punjab reported in (2004) 11 SCC 180. In that
case, the defendant no.3 moved an application that he does not
want to press the issue of adoption and in a subsequent suit, the
defendant no.3 as plaintiff raised the said grievance of
genuineness of adoption. On facts of that case, the present one is
distinguishable.
31. To conclude, the appellants who are not party to the
previously instituted suit, can challenge the judgment and decree
passed in the previous suit in a separately instituted suit asserting
their own title including the claim of title derived from a party to
the previously instituted suit, especially when the third party
(appellants) claims to be bonafide purchaser for consideration
without notice of any existing agreement.
The right of the appellants to bring fresh suit is fortified by
the situation of their non-impleadment in the suit or the execution
proceeding and providing opportunity of hearing. The rejection of
prayer for impleadment in the execution proceeding deprived and
left the appellants without remedy.
32. Moreover, the Execution Court could not have gone into the
collusiveness of the decree under execution. The Execution Court
could have looked into whether the judgment and decree was void
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ab initio for being without jurisdiction on the subject-matter of the
suit or for the reason of being passed against a dead person.
33. In the result, the impugned order/decree suffers from the
error of law and facts. Consequently, the same is set aside and the
plaint is directed to be restored to its position holding on the date
of rejection. The trial Judge shall proceed with the trial according
to law and expeditiously.
This appeal stands allowed, however, without any cost.
(BIRENDRA KUMAR),J
deep/-
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