2011 Supreme(All) 321

[2011(3) ADJ 377]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
SABBIR AHMAD AND OTHERS .....Petitioners
Versus
ADDITIONAL DISTRICT JUDGE (2ND) KAUSHAMBI AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 15236 of 2009, decided on 4th February, 2011)

Headnote:(A) Code of Civil Procedure, 1908—Order XXXIX, Rules 1 and 2—Transfer of Property Act, 1882—Section 52—Specific Relief Act, 1963—Section 38—Permanent injunction—Interim injunction issued in suit for permanent injunction—Directing parties to maintain status quo and restraining defendants from interfering with possession of plaintiffs—There was no rider or prohibition upon parties to alienate suit property—As such, sale of that property by one of the defendants and his brother, who was not party to suit—Not illegal, void or in disobedience of interim order—However, in view of Section 52, such sale is hit by rule of lis-pendens, as it was sold without obtaining permission of Court—Consequently, this sale will be subject to decision of suit—Instant sale was made to bona fide purchasers in good faith—Consequently, sale is not nullity or non-est even—Law on this aspect—Explained. [Paras 23 to 26 and 28 to 32]

       (B) Code of Civil Procedure, 1908—Sections 47, 146, 50 and 2(11) and Order XXI, Rule 32 and Order XXII, Rule 10—Permanent injunction—Execution of decree—Application for—Filed against transferees of suit property—Objection under Section 47 by those transferees—Maintainable—They are “representative” of transferor (original defendant)—Term ‘representative’ is wide in its meaning than term "legal representative" defined in Section 2(11) read with Section 50—Apart from it, Section 146 permits initiation of execution proceedings against “representatives”—Transferees contest execution proceedings, as persons claiming under original defendants—Question, whether transferees are representatives of original defendant (transferor), judgment debtor—Has to be decided by executing Court—In the instant case, executing Court has decided this question, holding that transferees are representative and can file objection under Section 47—Even, principles of natural justice, require opportunity of hearing of objections opposing execution of decree, as decree was sought to be executed against them—Several other relevant features related to this issue—Examined in depth and explained. [Paras 37 to 40, 44 to 49, 55, 62, 63 and 67 to 74]

       (C) Code of Civil Procedure, 1908—Sections 2(2), 2(9) and 47 and Order VIII, Rules 1, 5 and 10, Order IX, Rule 11, Order XII Rule 6, Order XX, Rule 4(2) and Order XXI, Rule 32—Decision of—Evidence Act, 1872—Section 58—Finally disposing of suit—Given on non-filing of W.S. within time prescribed—Is neither a decree within meaning of Section 2(2) nor a judgment within meaning of Section 2(9)—As such, not executable decree—Mere non-filing of Written Statement, or filing it after expiry of prescribed period of time, which attracts Rule 1 of Order VIII, or non-denial of plaint allegations, vague reply or admission of it—Does not compel Court pass decree in suit blindly—It remains in discretion of Court not to pass decree inspite of such conditions—Even when defendant admits facts alleged in plaint—Court has power to direct defendant to adduce evidence in support of his admission—Moreover, when defendant fails to appear—In such condition also, Court can proceed in accordance with Order IX, Ruel 11—In the instant case, Court passed decree on non-filing of W.S. by one of the two defendants—Court had no authority to pass decree in such situation, without adjudicating controversy involved in suit—Such decree, is beyond jurisdiction—Has to be set aside—Court is not supposed to pass order blindly or mechanically, merely because no written statement is filed by defendant—It should be cautious of not only facts but also of law and also of other relevant factors relating to it. [Paras 77, 79 to 82, 84, 86, 87 and 89 to 98]

       (D) Code of Civil Procedure, 1908—Order VIII, Rule 1—Written Statement—Filing of—Period of 30 days and its outer limit of 90 days—Prescribed by Legislature is only for ensuring speedy disposal of suit—Its language with use of word ‘shall’—Does not make it absolute or mandatory—Power of Court to permit more time—Is not taken away—As such, Court has ample discretionary power to give sufficient time to defendant for filing W.S. keeping in view judicial principles of law. [Para 79]

       (E) Specific Relief Act, 1963—Section 38—Code of Civil Procedure, 1908—Sections 2(2), 2(9) and 47 and Order VIII, Rules 1 and 10, Order XX, Rule 4(2) and Order XXI, Rule 32—Permanent prohibitory injunction—Suit for—Filed by plaintiff without claiming his title or possession over property in suit—Impleading two defendants (father and son)—W.S. filed only by one of the defendants (father)—Other defendant (son) did not file W.S.—Court decreed suit merely because of non-filing of W.S. by other defendant—Without recording finding on title or possession of plaintiff—Legally, suit could not have been decreed with recording findings on above issues—This decree is not a decree within the meaning of Section 2(2)—It is not a judgment even within the meaning of Section 2(9) read with Order XX Rule 4(2)—As such cannot be executed—It is settled law that judicial determination means decision of controversy between parties in accordance with law and procedure prescribed therefor, after recording reasons showing legal approach—Reasons are the links between controversy and its adjudication—Decree passed in instant suit lacks all the legal requirements and elements of legal approach—Executing Court, therefore, rightly refused execution, holding decree to be inexecutable—Revisional Court wrongly reverted that view—Relevant legal aspects—Examined and focussed. [Paras 112 to 117, 119 and 120]