Interim Order 11

Order Details: COPY OF ORDER
Pdf Text: Ex. No 401/23 Pg 1 of 6
IN THE COURT OF AYUSH SHARMA: CIVIL JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Reserved on: February 13th, 2025
Pronounced on: March 19th, 2025
EX. NO: 401/23
SEEMA GUPTA ...APPLICANT/
OBJETCOR
Through: Mr. C.M Grover and
Ms. Payal Buddhiraja,
Advocates.
IN THE MATTER OF: -
MAMTA JAIN ...DECREE
HOLDER
Through: Mr. J.M. Mittal,
Advocate.
VERSUS
PANKAJ ...JUDGMENT
DEBTOR
Through: None.
ORDER
1. The present order addresses the application filed under Order XXI
Rule 58 of the Civil Procedure Code, 1908 (‘CPC’), by the
applicant/objector Seema Gupta, wife of judgment debtor (‘JD’).
2. Brief facts necessary to determine the present application are
mentioned as under:
2.1 The decree holder (‘DH’) filed Suit No. 509/19, seeking recovery of
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Ex. No 401/23 Pg 2 of 6
possession, arrears of rent, and damages/mesne profits in respect of
property no. 22, First Floor, Govind Park, Delhi-51, measuring 50 square
yards. The DH claimed that on 22.09.2018, a sale agreement was executed
between the DH and the JD for the first floor, with a total sale consideration
of Rs. 23 lakhs. On the same day, the JD paid Rs. 1 lakh as earnest money,
with an agreement to pay Rs. 2 lakhs on 02.10.2018, while the remaining
amount was to be paid by 21.10.2018.
2.2 The sale agreement was not finalized, as on 30.09.2018, the JD
visited the DH’s residence and informed her that he was unable to pay Rs.
2 lakhs or comply with the agreed terms. The JD then requested the DH to
let out the first floor for three months at Rs. 7,000/- per month, excluding
electricity and other charges, starting from 01.10.2018. This tenancy
agreement was oral. However, the JD failed to pay the rent, prompting the
DH to issue a legal notice on 25.02.2019, demanding vacant possession of
the first floor.
2.3 In the written statement, the JD denied entering into a sale
agreement for the first floor. Instead, he claimed that the agreement dated
22.09.2018 pertained to the upper ground floor, admeasuring 50 square
yards, for the total sale consideration of Rs. 23 lakhs. He alleged that he
had paid the DH Rs. 1 lakh in cash and issued a cheque of Rs. 2 lakhs, with
an agreement that the sale deed would be executed by 21.10.2018.
2.4 The JD further claimed that the DH later visited his residence,
urgently requesting Rs. 15 lakhs in cash for personal reasons, in exchange
for immediate possession of the suit property. He alleged that he paid Rs.
15 lakhs in cash and took possession, but the DH failed to execute the sale
deed, despite repeated requests, continuously delaying the matter.
2.5 The JD contended that the DH failed to provide ownership
documents for the upper ground floor and intentionally entered into a false
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Ex. No 401/23 Pg 3 of 6
agreement to extort money from him. He further argued that the DH
knowingly made an agreement for which a sale deed could not be
executed, as he was aware that he was not the rightful owner of the
property.
2.6 The issues in the suit were framed on 22.03.2022. Despite multiple
opportunities, the JD failed to cross-examine the DH, leading to the closure
of his right to cross-examination on 16.01.2023. Furthermore, the JD did
not submit any evidence to support his claims. Consequently, on
17.05.2023, the court passed the judgment and decree against the JD.
3. By way of the present application, the wife of the JD has filed
objections regarding the execution of the judgment and decree dated
17.05.2023.
4. Mr. C.M. Grover, Ld. Counsel for the objector, presented the
following arguments:
4.1 The judgment and decree in favour of the DH were obtained through
concealment and fraud. The JD and the objector reside on the upper ground
floor of the property.
4.2 The agreement to sell dated 22.09.2018 (Ex. PW1/3) executed in
favour of the JD specifies the property sold as the upper ground floor,
whereas the suit was filed in relation to the first floor.
4.3 The judgment was passed without proper consideration of the
written statement submitted by the JD.
4.4 The objector fears that, based on the decree, the DH may take
possession of the upper ground floor under the pretext of the first floor.
5. Mr. J.M. Mittal, Ld. Counsel for the DH, advanced the following
arguments:
5.1 The applicant/objector is unrelated to the present case and has no
connection whatsoever with the suit property.
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Ex. No 401/23 Pg 4 of 6
5.2 The DH is the rightful owner of the suit property, which was rented
out to the JD. There is no distinct upper ground floor in the entire property;
rather, the upper ground floor and the first floor are one and the same. This
fact was explicitly clarified in the plaintiff’s affidavit of evidence.
5.3 The objector’s primary intention is to delay the execution of the
decree by raising baseless and frivolous objections.
6. I have heard the submissions of the parties at length and perused the
record. It is evident that the judgment and decree dated 17.05.2023 directed
the JD to hand over vacant and peaceful possession of the suit property,
along with other consequential reliefs. It is undisputed that the plaintiff and
the defendant entered into an agreement to sell on 22.09.2018.
Additionally, there is no dispute regarding the sale consideration of Rs. 23
lakhs and the total area of the property being 50 square yards. The sole
contention raised by the objector is that the agreement for sale pertained to
the upper ground floor of the property. The relevant portion of the JD’s
written statement, wherein he acknowledges the agreement and other
related details, is extracted below:
“The plaintiff has not obtained the absolute right in
the entire property. It is further submitted that the
plaintiff with malafide intention had entered into the
false agreement with the defendant to grab and to
extort the money from the defendant. The plaintiff
had intentionally made such an agreement which
cannot be executed as he is already aware that he is
not the owner of the property. It is further submitted
that the present suit is a tool to harass the defendant
who has been deceived by the plaintiff firstly by
making a wrong and illegal agreement and secondly
by filing the present suit to harass and humiliate the
defendant, hence the present suit filed by the
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Ex. No 401/23 Pg 5 of 6
plaintiff against the defendant is liable to be
rejected.”
7. At first glance, the argument presented by the objector’s counsel
regarding the alleged dispute over the identity of the property may seem
persuasive. However, a detailed examination of the written statement
reveals that no such dispute actually exists. The JD’s written statement
indicates that the DH sold a floor to him and granted him possession,
despite not being the owner of that floor. The JD further contended that the
DH knowingly entered into an unlawful agreement despite lacking
ownership rights over the floor. Regardless of the question of identity of
property, it is undeniable that the JD came into possession of the suit
premises/floor solely through DH. Once it is established that the JD’s
possession stemmed from the DH, any attempt to challenge the DH’s
ownership or raise a dispute regarding the property’s identity becomes
legally untenable. Such a claim is further barred under Section 116 of the
Indian Evidence Act, which precludes a person who has obtained
possession through another from questioning that person’s title.
8. Additionally, it is pertinent to note that the JD was examined under
Order X CPC on 22.10.2019, during which he admitted to having obtained
possession of the floor from the DH. Furthermore, he had given an
undertaking that he would not create any third-party interest in the
property. The JD’s status in the suit property is that of a tenant. Neither the
JD nor the objector (the JD’s wife) has filed any suit for specific
performance. Moreover, the agreement for sale is unregistered, thereby
preventing any claim of part performance.
9. In the Court’s opinion, there is no distinction between the first floor
and the upper ground floor of the suit property. The objections are devoid
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Ex. No 401/23 Pg 6 of 6
of merits and seem to have been filed with the sole intent of delaying the
transfer of possession of the suit property to the DH. In view of the reasons
cited above, the application stands dismissed. The application is
accordingly disposed of.
10. Upon filing of PF within 7 days, warrants of possession qua the suit
property as per site plan and warrants of attachment qua the movable
properties of JD be issued for the NDOH. The DH shall appear before the
Ld. ACJ, for appointment of bailiff on 26.03.2025. The warrants shall be
returnable on 15.04.2025. Concerned SHO is directed to provide necessary
police aid to the bailiff. DH is directed to ensure that there is no stay
against the order sought to be executed and DH shall file an affidavit to
this effect at the time of filing of PF.
(AYUSH SHARMA)
CJ/EAST/KARKARDOOMA
DELHI/19.03.2025
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