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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
P.S. RANA, J.
Roshan Lal son of Shri Nandu and others – Appellants
Versus
Nika Ram son of Budhu & others – Respondents
Civil Revision No. 9 of 2012
Decided on : 09-11-2016
Alienation - Execution of Decree - Code of Civil Procedure 1908 - Section 115 - Transfer of Property Act 1882 - Section 41 - Civil suit No. 1 of 1988, Civil appeal No. 77 of 1996, Civil suit No. 71 of 1992 - [11.2.1991, 1.8.1997, 31.8.1998] - The court discussed the execution of a decree, the validity of the alienation of the suit land, and the rights of a bonafide purchaser under Section 41 of the Transfer of Property Act 1882. The court held that the judgment debtors disobeyed the decree and that the sale deed in favor of Hasan Ali could not be declared null and void.
Fact of the Case:
The decree holder filed an execution petition alleging that the judgment debtors violated the decree by alienating the suit land before partition. The judgment debtors and the purchaser of the suit land filed objections denying the allegations.
Finding of the Court:
The court found that the judgment debtors disobeyed the decree and ordered their detention in civil imprisonment. The court also held that the purchaser, Hasan Ali, was a bonafide purchaser and protected under Section 41 of the Transfer of Property Act 1882.
Issues: The issues included whether the judgment debtors disobeyed the decree, the maintainability of the execution application, and the relief sought.
Ratio Decidendi: The court held that the judgment debtors disobeyed the decree and that the purchaser, Hasan Ali, was a bonafide purchaser protected under Section 41 of the Transfer of Property Act 1882.
Final Decision: The revision petition was dismissed, and the order of the Executing Court was affirmed. The parties were left to bear their own costs.
JUDGMENT :
P.S. Rana, J.
Present civil revision petition is filed under Section 115 of the Code of Civil Procedure 1908 against order of learned Civil Judge (Senior Division) Court No.1 Sundernagar District Mandi passed in execution petition No. 8 of 1999 decided on 28.12.2011.
Brief facts of the case
2. Nika Ram Decree Holder filed execution petition No. 8 of 1999 pleaded therein that civil suit No. 1 of 1988 titled Nika Ram and others vs. Nandu was decided by learned Civil Judge on 11.2.1991 and Nandu son of Shri Chamaru was restrained from making any sale deed of suit land till partition of suit land. It is pleaded that thereafter civil appeal No. 77 of 1996 was filed by judgment debtors. It is pleaded that judgment debtor died and his LRs were impleaded in civil appeal No. 77 of 1996 which was disposed of on 1.8.1997 by learned District Judge Mandi (H.P.). Matter was compromised before learned Appellate Court inter se parties and appeal was not pressed and appeal was dismissed as withdrawn. It was ordered that statements of parties and their counsel recorded would form part of order. It is pleaded in execution petition that judgment debtors have intentionally and voluntarily violated decree of learned Trial Court by way of alienating suit land in favour of Hasan Ali on dated 20.10.1998 registered on 21.10.1998 in consideration amount of Rs.150000/- (Rupees one lac fifty thousand) before partition of suit land. It is prayed that judgment debtors be detained in civil prison and property of judgment debtors be also attached. It is further pleaded that sale deed dated 20.10.1998 registered on 21.10.1998 executed by judgment debtors in favour of Hasan Ali be cancelled.
3. Judgment Debtors Nos. 1 to 6 filed objections in execution petition. It is pleaded that sale deed has been executed by judgment debtor in favour of Hasan Ali in accordance with law. It is pleaded that undertaking before learned District Judge Mandi H.P. was subject to decision of civil suit No. 71 of 1992 titled Khalelu and others vs. Radha and others. It is pleaded that civil suit No. 71 of 1992 was decided on 31.8.1998. It is pleaded that after decision of civil suit No. 71 of 1992 judgment debtors were legally competent to execute sale deed qua land mentioned in decree sheet. It is pleaded that judgment debtors have alienated suit land in favour of Hasan Ali after receiving legal opinion from Advocate. It is pleaded that Hasan Ali is bonafide purchaser for consideration. Prayer for dismissal of execution petition sought.
4. Per contra separate objections filed by Hasan Ali purchaser of suit land pleaded therein that he is bonafide purchaser of land mentioned in decree sheet for valuable consideration of Rs.150000/- (Rupees one lac fifty thousand). Prayer for dismissal of execution petition sought.
5. Per contra separate objections filed on behalf of Kundan Lal Patwari pleaded therein that he was not aware of judgment and decree passed by learned Trial Court. Kundan Lal further pleaded that he simply supplied the copy of record of right on demand as per H.P. Land Revenue Act 1954 while discharging his official duty. Prayer for dismissal of execution petition against Kundan Lal Patwari sought.
6. Learned Executing Court framed following issues on dated 19.6.2002:-
1. Whether Judgment Debtors Nos. 1 to 6 have disobeyed the decree of Court by making alienation in favour of Hasan Ali as alleged? ….OPP
2. Whether execution application is not maintainable? …..OPRs
3. Relief.
7. Learned Executing Court decided issue No. 1 in affirmative and decided issue No. 2 in negative. Learned Executing Court partly allowed the execution petition against Judgment Debtors Nos.1 to 3 namely Roshan Lal, Shyam Lal, Smt. Chetri Devi and ordered that Judgment Debtors Nos. 1 to 3 would be detained in civil imprisonment for a period of one month. Learned Executing Court issued arrest warrant against Roshan Lal, Shyam Lal and Khetri Devi returnable for 19.2.2012. Learned Executing Court further hel
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