JUJHAR SINGH  Vs M/S HOTZ INDUSTRIES LTD

EFA(OS) 21/2019 Page 1 of 7
$~A-2.
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ Date of Decision: 12.01.2021

% EFA(OS) 21/2019

JUJHAR SINGH ….. Appellant
Through: Mr. Manish Vashisht, Advocate.

versus

M/S HOTZ INDUSTRIES LTD ….. Respondent
Through: Mr. Ravi Gupta, Senior Advocate
with Mr. Ankur Mahindro, Advocate.

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MS. JUSTICE REKHA PALLI

VIPIN SANGHI, J. (ORAL)

1. The present appeal is directed against the order dated 06.08.201 9
passed by the learne d Single Judge, whereby, inter alia, the Execution
Petition No.46/2018 preferred by the plaintiff/ appellant to execute the order
passed on an application under Order XXXIX Rules 1 & 2 CPC (being I.A.
No.3865/2018) was rejected on the ground that the execu tion petition was
not maintainable , and was misconceived.
2. The order dated 20.03.2018 passed by the learned Single Judge may
be reproduced . The same recites the background facts of the case:
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“I.A.No. 3866/2018 (Exemption)
Exemption allowed subject to just exceptions.
I.A stands disposed of.
CS(OS) 114/2018 & I.A.No.3865 /2018(U/o 39 Rules 1 and 2
CPC)
1. This is a suit for possession, mandatory and permanent
injunction with respect to a portion of the property comprised
in the main property bearing no. G -6, Maharani Bagh, New
Delhi which is situated on a plot of land of 800 sq. yds. The
disputed portion is shown in red colour in the site plan and is in
possession of the defendant no.1 through its guards and
servants as stated in para 23 of the plaint.
2. Learned counsel for the plaintiffs argues that the suit
house was a jointly owned house of originally the plaintiffs with
the defendant no.2 and late Smt. Madhuri Kuldip Singh who is
the daughter of Smt. Raj Mohan Singh and the sister of the
predecessor -in-interest of the plaintiffs and the defendant no.2.
As on date the undivided share of late Smt. Madhuri Kuldip
Singh is claimed by the defendant no.1 herein.
3. It is argued that the admitted position is that the suit
property by devolution came to be co -owned by the legal heirs
of the deceased mother Smt. Raj Mohan Singh, and this suit
property was a residential house which was never partitioned
between the family members being the legal heirs of Smt. Raj
Mohan Singh. It is argued that in a joint family ho use Section
44 of the Transfer of Property Act, 1882 gives the protection
that no stranger can enter into the property. It is argued that in
terms of the agreement to sell entered into between Smt.
Madhuri Kuldip Singh and the defendant no.1 at best the
defendant no.1 could have purchased the undivided 1/6th share
of late Smt. Madhuri Kuldip Singh but no possession of the joint
family residential house could have been legally given by Smt.
Madhuri Kuldip Singh to the defendant no.1 under the
compromise date d 9.2.2005 recorded in Suit no. 1261/1995
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filed by defendant no.1 herein for specific performance of an
agreement to sell the suit property. It is argued that the Suit no.
1261/1995 filed by the present defendant no.1 as plaintiff for
specific performance with respect to the entire property G -6,
Maharani Bagh, New Delhi stands dismissed, and therefore at
best the defendant no.1 would have only 1/6th undivided right
in the suit property which fell to the share of late Smt. Madhuri
Kuldip Singh. Reliance by t he plaintiffs is placed upon a
judgment of the Supreme Court in the case of Dorab Cawasji
Warden vs. Coomi Sorab Warden and others (1990 )2SCC 117
that courts can grant status quo ante when by fraud Section 44
of the Transfer of Property Act is violated. I t is argued that the
present is a fit case for grant of interim injunction because none
of the Directors or family members of the Directors or
shareholders of the defendant no.1 are living in the suit
property but the physical possession of the disputed po rtion
shown in red colour in the site plan is sought to be maintained
by the defendant no.1 through its servants and guards. It is
argued that disentitlement to legal and physical possession of
the defendant no.1 should be legally recognized by preventing
the defendant no.1 from in any manner entering upon or using
the portion marked in red colour in the site plan filed with the
plaint.
4. In view of the arguments urged on behalf of the plaintiffs,
and the fact that the suit property is a joint family prop erty
which devolved on the legal heirs of Smt. Raj Mohan Singh and
no partition has ever been pleaded by late Smt. Madhuri Kuldip
Singh and not so even by the defendant no.1 as per the
pleadings in the earlier suit no. 1261/1995, and the Supreme
Court in t he judgment in the case of Dorab Cawasji Warden
(supra) has held that illegal possession can be corrected even
by status quo ante and directing injunction against the
defendants not to enter into possession of an undivided joint
family residential house by exercising powers under Order 39
Rules 1 and 2 CPC, therefore, till further orders unless varied
by the Court, defendant no.1 is restrained from in any manner
entering upon or using the portion shown in red colour in the
site plan attached to the suit and which forms part of property
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no. G -6, Maharani Bagh, New Delhi. Copy of the site plan will
be attached to the notice issued to defendant no.1.
5. Summons in the suit and notice in the I.A be issued to the
defendants on filing of process fee, both in the ordinary method
as well as by registered AD post, returnable on 19th April,
2018.
6. Plaintiff will comply with the provision of Order 39 Rule
3 CPC within 3 days.
Dasti.”
3. The aforesaid would show that the learned Single Judge took notice of
the decision of the Supreme Court in Dorab Cawasji Warden vs. Coomi
Sorab Warden and Others , (1990) 2 SCC 117, wherein it had been held that
illegal possession can be corrected , even by directing status quo ante , and
directing injunction against the defendant s not to enter into possession of an
undivided joint family residential house by exercising powers under Order
XXXIX Rules 1 & 2 CPC .
4. The plaintiff/ appellant preferred the Execution Petition No.46/2018,
wherein the plaintiff/ appellant sought execution of the said order in the
following manner:
“10. Mode in which the Assistance of the court is required.
i. The Decree Holder/Petitioner most respectfully submits
that this Hon’ble Court may kindly issue warrants of
possession and the Judgment Debtor/Respondent be
directed to vacate the possession and remove the locks on
the portion highlighted in red color in the site plan in the
suit property by appointing a bailiff. The bailiff be
directed to go to the spot and take physical possession of
the part of the property be aring No G -6, Maharani Bagh,
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New Delhi as shown in red colour in the site plan and
deliver the same to the Decree Holder/Petitioner.
ii. That the Bailiff be further directed to also remove the
belongings of the Judgment Debtor/Respondent lying in
the said premises kept locked by the Judgment
Debtor/Respondent and to deliver the Decree
Holder/Petitioner vacant physical possession of the part
of the property bearing No G -6, Maharani Bagh, New
Delhi as shown in red colour in the site plan.
iii. It is also pra yed that this Hon’ble Court may please be
gracious enough to provide the Police aid as the Decree
Holder/Petition has all the apprehension that the
Judgment Debtor/Respondent shall put all kinds of
resistance and obstruction in execution of the said order.
Therefore, this Hon’ble Court may direct Dy.
Commissioner and/or SHO, Maharani Bagh, New Delhi,
to assist the bailiff in getting the physical possession of
the part of the property bearing No G -6, Maharani Bagh,
New Delhi as shown in red colour in the sit e plan.”
5. The submission of learned counsel for the appellant is that the learned
Single Judge , while passing the impugned order – holding the execution
petition to be not maintainable and misconceived , ignored Section 36 of the
Code of Civil Procedure whic h provides that the provisions of th e Code
relating to the execution of decree (including provisions relating to payment
under a decree) shall, so far as they are applicable, be deemed to apply to the
execution of orders (including payment an order) .
6. Mr. Vashisht has also referred to a decision of a Division Bench of
this Court in Rohit Shekhar Vs. Narayan Dutt Tiwari & Another , ILR
(2012) 5 Delhi 181, in support of his submission that an execution would lie
even in respect of an order passed under Order X XXIX Rules 1 & 2 CPC.
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7. We find force in this submission of Mr. Vashisht. In our view, the
learned Single Judge has acted in ignorance of Section 36 CPC while
passing the impugned order , as well as of the aforesaid decision.
Interestingly, it is pointed ou t that the learned Single Judge – who passed the
impugned order , was party to the said decision of the Division Bench. It
appears that the said decision escaped the attention of the learned Single
Judge while passing the impugned order. The impugned orde r passed by the
learned Single Judge in Execution Petition No.46/2018 is, therefore, set
aside and we hold that the said Execution Petition was maintainable. The
Execution Petition is restored for consideration by the learned Single Judge
on its merits.
8. On the aspect of what interim arrangement shout operate in the
meantime, i.e. till the consideration of the Execution Petition, Mr. Gupta, on
instructions from Mr. Ankur Mahindro , who in turn, has taken instructions
from the respondent, without prejudice to the rights & contentions of the
respondent, states that the respondent is agreeable that the appellant may
occupy and use the portion of the property , of which the respondent ’s
vendor purported to deliver exclusive possession to the respondent. The
said portion is delineated in red colour in the plan Annexure A -11at page
182 of the record.
9. Accordingly, the appellant may use and occupy the portion
demarcated in Red colour in the plan ( Annexure A -11) without prejudice to
the rights & contentions of the pa rties.
10. The respondent is permitted to remove its belongings from the said
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portion within one week , so that the portion may be used and occupied by
the appellant, as aforesaid.
11. The learned Single Judge will hear and decide all the pending
applications and t he execution petition , which is restored on the file of the
learned Single Judge. Mr. Vashisht states that no adjournment would be
sought before the learned Single Judge in the pending application s/ suit.
12. The appeal stands disposed of in the aforesaid te rms.

VIPIN SANGHI, J

REKHA PALLI, J
JANUARY 12 , 2021
B.S. Rohella
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