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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Gian Singh and others - Appellants
Versus
Krishana Devi and others - Respondents
RSA No.3286 of 2003
Decided On : 12-07-2018
(A) Evidence Act, 1872, S.114(g)--Adverse Inference--It is obligatory for the court to examine evidence which is already available on file before taking a decision to draw adverse inference against a party for non appearance in evidence. (Para 12)
(B) Evidence Act, 1872, S.114(g)--Adverse Inference--Non appearance of Party--Checks and balances to be applied by the court before drawing adverse inference are:-
i) Whether other evidence available on the record is sufficient to establish the case set up by the party?
ii) Whether some facts were in knowledge of the party exclusively and his/her non-appearance has resulted in withholding the aforesaid personal information from the Court?
iii) Whether the General Power of Attorney or any representatives who has appeared for the party was in a position to answer all the questions put up by the opposite party and facts required to be proved were in his knowledge?
iv) Whether any prejudice has been caused to the other party on account of non-appearance of the party in evidence?
(C) Civil Procedure Code, 1908, S.47--Execution of Decree--Separate suit not maintainable--All questions arising between the parties to the suit in which the decree was passed or their representative relating to the execution, discharged or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.
(D) Civil Procedure Code, 1908, S.47--Execution of Decree--Redemption of Mortgage--Separate suit not maintainable--Proceedings/ordered passed by the executing court cannot be challenged by the judgment debtor in a separate suit--Plaintiffs are representatives of original owner who have stepped into his shoes particularly when they are claiming redemption of mortgage, which was executed by original owner and they claim to have purchased property for original owner--Separate suit held to be not maintainable--Transfer of Property Act, 1881, S.60. (Para 18)
(E) Civil Procedure Code, 1908, S.47--Execution of Decree--Application for Restoration/revival of execution petition is not to be treated as fresh execution petition.
Held, Plaintiff failed to prove that execution petition either got revived or any fresh execution petition was filed by defendants-appellants--Thus, evidence establishes that first execution petition was restored and registration of sale deed was ordered through appointment of a new local commissioner--Entire decretal amount was deposited in year 1986--Thereafter decree holder not required to do any substantive act and it was for executing court to get sale-deed executed in favour of appellants through court commissioner who was also appointed--Therefore, Second application treating as fresh execution petition improper. (Para 19)
(F) Transfer of Property Act, 1881, S.60--Redemption of Mortgage--Maintainability--Whether sale-deed having been executed in favour of appellants and consequently they having become owners, decree by redemption of mortgagee rights could be legally passed against them--Held; Once sale-deed executed in favour of appellants pursuant to decree for possession by way of specific performance of agreement to sell, mortgage created by original owner in favour of mortgagees had come to an end--Appellants absolute owners of property in possession, therefore, without challenging sale-deed executed by court in favour of appellants, suit filed by plaintiffs not maintainable--Therefore, judgment and decree for suit for possession by way of redemption set aside. (Para 20)
ANIL KSHETARPAL, J.
1. Defendants-appellants are in the regular second appeal against the concurrent findings of fact arrived at by the courts below.
2. In the considered opinion of this Court, following substantial questions of law arise for consideration:-
(i) Before drawing adverse inference against a party for non-appearance in the witness box whether it is obligatory for the court to examine the evidence already available and determine that it is sufficient or not?
(ii) Whether proceedings/ordered passed by the executing court can be challenged by the judgment debtor in a separate suit?
(iii) Whether an application for restoration/revival of execution petition is liable to be treated as a fresh execution petition or not?
Learned senior counsel for the appellants at the time of motion hearing had also proposed following substantial questions of law:-
(iv) Whether the sale-deed having been executed in faavour of the appellants and consequently they having become owners, the decree by redemption of mortgagee rights could be legally passed against them?”
(v) Whether in absence of any challenge to the sale deed Ex.D2, the courts could legally ignore the same?
Facts
3. Baldev Singh was original owner of the property measuring 41 kanals and 9 marlas. He mortgaged the property on 08.12.1967 in favour of defendant No.1 Gian Singh and certain other persons for a sum of Rs.28,000/-. Thereafter Baldev Singh entered into an agreement to sell for the sale of the property in favour of mortgagees. The mortgagees filed a suit for specific performance of the agreement to sell which was decreed on 24.2.1975.
4. It will be significant to note that in the meantime Baldev Singh had sold the property in favour of the plaintiffs Krishna Devi etc. They were party to the suit for possession by way of specific performance of the agreement to sell was passed in favour of Gain Singh etc. appellants.
5. Regular First Appeal filed by Krishna Devi and others against the judgment of the trial court was dismissed on 6.12.1983. During the pendency of the first appeal, execution of the decree was stayed. In the present suit, the plea of the plaintiffs, who were defendants in the previous suit, that they bonafide purchasers negated by the court.
6. Gian Singh etc.-appellants herein, who were decree holders in a decree for possession by way of specific performance of the agreement to sell, filed execution petition on 4.1.1985. The amount as required under the decree was deposited on 22.07.1986. Unfortunately the execution petition was dismissed in default on 16.8.1986.
7. Application for restoration was filed by the decree holders on 6.6.1994. In the application, it was specifically stated that the entire amount has already been deposited as required under the decree and even Local Commissioner was appointed by the court to execute the sale deed. However, the sale-deed could not be executed as decree holder in the meantime migrated due to terrorism in the State of Punjab and on their return they have noticed that the sale-deed has not been executed. Even this application was dismissed vide order dated 4.12.1995 under Order 9 Rule 2 of the Code of Civil Procedure (for short ' CPC'). Decree holder once again filed an application under Section 151 CPC for taking up the previous file to execute and registration of the sale-deed. Prayer made by the appellants is extracted as under:-
“It is therefore prayed that the previous file of the case may kindly be taken up and the sale deed may kindly be executed and got registered in favour of the applicants/DHs through local commissioner, in the interest of justice.”
8. On the basis of this application, order came to be passed by the learned trial court, copy whereof is not on the file but it is apparent from the reading of the order (Ex.P12) passed by this Court in the revision petition that on 5.8.2000, the court after noticing that the amount has already been deposited and Sucha Singh, Reader of the Court, who was appointed
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