Judgment :

Parmod Goyal, J.

CM-2920-C-2019 in RSA-1224-2019

This is an application for condonation of delay of 9 days in refiling the present appeal.

For the reasons mentioned in the application, the same is allowed and the delay of 9 days in refiling the present appeal, is hereby condoned.

Main Case(s)

1. Appellants-Defendant Nos. 1 and 4 have preferred two appeals and are aggrieved by the judgment and decree dated 26.03.2015 passed by the Civil Judge (Junior Division), Rajpura, and the judgment and decree dated 01.08.2018 passed by the First Appellate Court presided over by the Additional District Judge, Patiala, whereby the suit for possession and permanent injunction filed by the plaintiffs was decreed and the decree was upheld in appeal.

2. The plaintiff-respondent, in their suit for declaration and permanent injunction, had asserted that on 29.05.2006, he participated in a court auction, wherein Shop No. 2 and Shop No. 3-part of House No. 1508, Rajpura Town were put to auction. The plaintiff emerged as the highest bidder for a sum of ?l,90,000/- and, in accordance with the auction conditions, he duly deposited one-fourth of the bid amount at the spot with the Court auctioneer. The plaintiff further alleged that, during the pendency of recovery suit filed by defendant No. 5, defendant Nos. 1 to 3 deliberately and fraudulently executed a sale deed of the said two shops in favour of defendant No. 4. However, the said sale deed was held to be attempt to avoid debt by the Court of Additional Civil Judge (Senior Division), Rajpura, vide order dated 17.03.2006. This order was affirmed by this Court vide order dated 23.05. 2006, holding that the sale executed by defendant Nos. 1 to 3 in favour of defendant No. 4 was the result of fraud committed upon the decree holder and the Court. On 11.07.2007, the auction sale was confirmed by the Court, the remaining sale consideration was deposited, and the plaintiff became the owner in possession of the shops in question.

3. That during the pendency of execution proceedings, and after confirmation of the sale, the plaintiff-respondent moved an application for possession and for issuance of the sale certificate. However, the decree holder and the appellants-defendants (judgment debtors), in collusion with each other, intentionally compromised the matter, and the decree holder withdrew the execution petition. The objections filed by defendant No. 4 were dismissed, and the Executing Court granted liberty to the plaintiff to file a separate suit or seek his remedy under Order 21 CPC. That since defendant Nos. 1 to 4, in order to defeat the rights of the plaintiff, were attempting to sell the shops and alter the nature of the property, and had failed to deliver possession of the shops. Hence, the present suit was filed.

4. On notice, defendant No. 1 asserted that the plaintiff failed to disclose his source of income and the identity of the person who informed him about the date of auction. It was contended that one Manoj Kumar had actually placed a higher bid of ?2,25,000/-, but the bid sheet was allegedly manipulated, and the auction was result of such manipulation. It was further asserted that the shops were sold to defendant No. 4 on 25.09.2002, much prior to the passing of the decree dated 01.05.2003. Although the auction sale was confirmed, it was argued that no sale certificate was ever issued since an appeal had been filed by Om Parkash appellant-defendant No. 4 and possession was never delivered to the plaintiff. That in the absence of a sale certificate, the plaintiff's ownership could not be legally established, and that an appeal filed by defendant No. 4 was still pending. Accordingly, dismissal of the suit was prayed for.

5. Defendant No. 4 adopted similar pleas as were taken by defendant No. 1. He asserted that he had purchased the shops on 25.09.2002, i.e., prior to the passing of the decree dated 01.05.2003. He denied the ownership of the plaintiff over the said shops and further alleged