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2014 Supreme(Del) 2670
HIGH COURT OF DELHI
Najmi Waziri, J.
Saira Hafeez & Anr. - Appellant
Versus
Parveen Rehman & Ors. - Respondent
CM(M) 314/2014, CM Nos. 5913(for Stay) & 5914/2014(for Exemption), Cav. No. 296/2014
Decided On : 03-04-2014
For the Petitioners:Mr. Shahid Azad with Mr. Ashutosh Rana, Mr. Shabbir Ali, Ms. Shabana Ahmed & Mr. Mohd. Aslam, Advocates.
For the Respondents:Mr. Rajiv Duggal, Advocate.
Headnote:
Civil Procedure Code, 1908 - Section 115, Order 21 Rule 97, 98, 99, 101, 103, 104 - Execution - Objection - Dismissal of - Will - Effect of - Execution Petition for recovery of the suit premises as well as mesne profits - JD was declared to be in unauthorized occupation of the suit property - Objection was filed on the basis of will - Petitioners were fully aware of the suit and participated in it - Suit is defended by them - Will came into effect only after the demise of the JD - In his lifetime itself the JD had been declared an unauthorized occupant of the suit premises - He was devoid of any right, title or interest in it - Nothing was possessed apropos the suit property which he could transfer or bequeath in a Will - Nothing would flow to the petitioners by virtue of the Will - Once there is finality by the judgment apropos the ownership of the suit premises the issue cannot be reopened at the behest of parties claiming through JDs - Petitioners too do not have any right in the suit premises - Held, impugned order does not suffer from any material irregularity - Petition dismissed.
Caveat Petition No. 296/2014
Mr. Rajiv Duggal, Advocate, enters appearance on behalf of the Caveators/respondents. The Caveat Petition No. 296/2014 stands discharged.
CM(M) 314/2014 & CMs 5913 & 5914 of 2014
1. At the request of learned counsel for the parties, the case is being taken up for final hearing.
2. This petition under Section 115 of the Code of Civil Procedure impugns an order dated 14.03.2014 in Execution Petition No. 189 of 2008 whereby the petitioners’ objection application was dismissed as being not maintainable in law. The petitioners/objectors had sought the dismissal of the Execution Petition. The respondent No. 1/plaintiff/Decree Holder (DH) had filed the aforesaid Execution Petition for recovery of the suit premises as well as mesne profits in terms of the judgment and decree dated 02.07.2005 in Suit No. 96/2002 in which the JD was declared to be in unauthorized occupation of the suit property No. D-190, Abul Fazal Enclave, Okhla, Delhi-110025 and an amount of Rs. 10,000/- per month was directed to be paid as mesne profit till the handing over of the possession. Warrants of Possession with respect to the suit premises had been issued on 19.07.2008, but on 01.10.2008, the present petitioners filed objections to the execution petition. They claimed that they were the Legal Representatives (LRs) of the JD, therefore, they ought to be heard in the Execution Petition. They claimed that much before his demise on 25.02.2008, the JD had registered a Will on 28.02.2002 bequeathing the suit property to them, hence, they were entitled to it and since they were not parties to the suit, they were not bound by the judgment and the decree. They argued that, therefore, the Execution Petition ought to be dismissed.
3. The respondent/plaintiff had sought a decree of possession of the suit property and mesne profit against the defendant for the occupation of the premises. The JD preferred an appeal in this Court, bearing RFA No. 25 of 2006 but the same was withdrawn by his LRs on 05.05.2008. However, during the pendency of the case, he expired on 25.02.2008. The RFA was later dismissed as withdrawn by order of 05.05.2008. The respondent/DH claimed that therefore, the judgment and decree had attained finality as of that day, and neither the JD nor anybody claiming through him would have any right, title or interest in the suit property nor could he part with possession of the same in favour of anybody else except for the plaintiff/DH as had been decreed, and the JD and all claiming through him would be unauthorized occupants of the premises.
4. Sometime later, the present petitioners sought impleadment in the appeal, which already stood withdrawn before this Court. Their applications were dismissed on 07.07.2010 by the following order:
“By this application filed under Section 151 CPC the applicants, namely, Ms. Saira Hafeez and Mr. Syed Hameedullah seek their substitution in the present proceedings based on the registered will dated 28.2.2002. Counsel for the applicants submits that these applicants are seeking the substitution based on the said registered will. Counsel further submits that these applicants are also in possession of the property in question. The application is strongly opposed by the respondent and counsel representing the legal heirs of the deceased appellant.
I have heard learned counsel for the parties.
The present appeal was withdrawn by the legal heirs of the deceased appellant vide orders dated 5.5.2008. It is quite evident that the legal heirs of the deceased were not prepared to contest the judgment and decree dated 2.7.2005 passed by the Lower Court in Suit No. 96/2002. The present applicants who are admittedly not the legal heirs of the deceased appellant are claiming their rights in the property in question based on the registered will. The genuineness and authenticity of the said will is seriously being disputed by the respondent as well as the legal heirs of the deceased. The validity an
