The court affirmed that unproven claims under an agreement to sell do not override execution proceedings, especially when the claim is time-barred.

ORDER :

1. The present revision petition has been preferred against the order dated 13.12.2010 passed by the learned Additional District Judge, Gulabpura, Bhilwara in Civil Misc. Appeal No.10/2010 whereby the learned Court proceeded on to affirm the order dated 01.11.2010 passed by the Civil Judge (Senior Division), Gulabpura whereby the objections under Order 21 Rule 58, CPC as preferred on behalf of the objector Chandra Shekhar Singh were rejected.

2. The facts are that execution proceedings were initiated in the year 2003 by one Kanhaiya Lal (respondent No.1) against Gopal Lal (respondent No.2) for execution of three decrees qua the suits decreed in his favour. In the said execution proceedings, objections under Order 21 Rule 58, CPC were filed by the present revision petitioner Chandra Shekhar Singh with a submission that Gopal Lal had executed an agreement to sell dated 16.11.1997 in his favour for a consideration amount of Rs.5,00,000/- qua the property which was attached in the execution proceedings.

3. It was further submitted that the possession of the property was handed over to him by Gopal Lal in the year 1997 itself as part consideration amount of Rs.4,50,000/- was paid to him at that point of time. But as one tenant Vinod Kumar was in possession of some portion of the property, the remaining consideration amount of Rs.50,000/- was not paid and it was agreed between the parties that the same would be paid and the sale deed would be executed after Gopal Lal having evicted Vinod Kumar from the property in question.

4. However, the sale deed could not be executed.

5. When the notice of attachment was affixed on the property in question in the year 2004, the petitioner came to know about the decrees passed in favour of Kanhaiya Lal and of the present execution proceedings. Therefore, the objections were filed by him within time.

6. It was further submitted on behalf of the petitioner that the agreement to sell dated 16.11.1997 being of a date prior to the decrees in question, there was definitely a cloud on the property and without deciding the issue whether the objector was entitled for a decree for specific performance, the property could not have been attached. The right of the objector, which was created prior to the decree, could not have been obliterated by the attachment.

7. In support of his submissions, learned counsel for the petitioner relied upon the following two judgments:

i. Vannarakkal Kallalathil Sreedharan vs. Chandramaath Balakrishnan & Anr., (1990) 3 SCC 291

ii. Kancherla Lakshminarayana vs. Mattaparthi Syamala & Ors., (2008) 14 SCC 258

8. While relying upon the case of Vannarakkal (supra), counsel submitted that the rights of the attaching creditor cannot be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property.

9. The learned Executing Court while rejecting the objections as raised by the petitioner specifically held that firstly, the execution of the alleged agreement to sell (Exhibit 1) was not even proved as the judgment debtor Gopal Lal did not even enter the witness box. Secondly, the transfer of the consideration amount qua the alleged agreement to sell was also not proved.

10. The Court further observed that there was nothing on record to show as to why the alleged agreement to sell dated 16.11.1997 was not sought to be got enforced by the petitioner for a period of more than 13 years.

11. At this stage, it is relevant to note that the present revision petition stood dismissed against respondent No.1-Kanhaiya Lal (decree holder) vide order dated 16.05.2023 as his legal representatives were not substituted after his death.

12. Counsel appearing for respondent No.2-Gopal Lal (judgment debtor) raised two preliminary objections:

i. Firstly, the present revision petition is not maintainable as the order impugned was passed on the objections under Order 21 Rule 58, CPC. As per Order 21 Rule 58(4), CPC the order dated 01.11.2010 passed under the sa