Shudhir Panwar and Anr v. Vinod Kumar & Anr

RAJIV SAHAI ENDLAW, J. JULY 19, 2018 'pp/bs'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 19th July, 2018. + EX.F.A. 1/2015, CM No.3282/2015 (for stay) & CM No.2394/2016 (u/S 151 CPC) SHUDHIR PANWAR AND ANR ..... Appellants Through: Mr. Vinod K. Singh, Adv. Versus VINOD KUMAR & ANR ..... Respondents Through: Mr. Vijay Singh and Mr. Deepak Bhanwala, Advs. for R-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Execution First Appeal impugns the judgment/order (having force of decree) [dated 28th January, 2015 in Execution No.54/2013 of the Court of Additional District Judge-1, North East District] allowing the objections under Order XXI Rule 26 read with Rules 97 to 100 of the Code of Civil Procedure, 1908 (CPC) preferred by the respondent no.2 Shushma Chopra to the execution sought by the two appellants of the judgment and decree [dated 4th June, 2013 in CS No.75/2013 of the Court of Additional District Judge (North East)-01] of recovery of possession of ground floor of property no.C-2/127, Yamuna Vihar, Delhi, in favour of the appellants and against the respondent no.1; since in execution, the appellants were put in possession of the said property, vide the impugned order, the appellants have also been directed to revert back the possession to the respondent no.2/objector. 2. The appeal came up first before this Court on 24th February, 2015 when, while issuing notice thereof, stay of operation of the impugned order was granted. The said interim order has continued till date. 3. The respondent no.1/defendant/judgment debtor could not be served and was ordered to be served by publication and has been so served. The counsel for the respondent no.2 appears. Though the record of the Suit Court and the Executing Court has not been requisitioned inspite of numerous listings of the appeal but the parties have filed copies of relevant record and now, after counsels have been heard, need to adjourn on the said account is not felt. 4. The counsel for the appellants and the counsel for the respondent no.2/objector have been heard. 5. The appellants instituted the suit, from order in execution of decree wherein this appeal arises, for recovery of possession of the aforesaid property claiming to have purchased the same vide Sale Deed registered on 1st April, 2013 from the respondent no.1/defendant/judgment debtor and of which possession had not been delivered by no.1/defendant/judgment debtor to the appellants/plaintiffs. A claim for mesne profits was also made. 6. The respondent no.1/defendant/judgment debtor appeared in the suit on 14th May, 2013 and admitted that he had sold the property to the appellants/plaintiffs and gave a statement on oath that he would hand over possession of the property to the appellants/plaintiffs on 25th April, 2013. The suit was adjourned to 27th May, 2013. On 27th May, 2013, the respondent no.1/defendant/judgment debtor again appeared, this time along with the counsel and sought one more weeks' time to vacate the property. The suit was accordingly adjourned to 4th June, 2013. On 4th June, 2013, the respondent no.1/defendant/judgment debtor did not appear and the Advocate who had appeared for him on the earlier date stated that he had no instructions from the respondent no.1/defendant/judgment debtor. In this scenario, the appellants/plaintiffs sought decree for possession on admissions and the Suit Court, on 4th June, 2013, recording that the appellants/plaintiffs had produced the original registered Sale Deed which showed purchase of the property for consideration of Rs.19,80,000/- and that the respondent no.1/defendant/judgment debtor also, on 4th May, 2013 had made statement on oath stating that he will handover possession of the property to the appellants/plaintiffs, passed a decree on admissions, of recovery of possession, in favour of the appellants/plaintiffs and against the respondent no.1/defendant/judgment debtor. The suit qua the claim for mesne profits was listed for further proceedings. The counsel for the appellant