Gautam Modi v. Pravin Chandra Modi (Deceased) Thr Lrs

RAJIV SAHAI ENDLAW, J. AUGUST 31, 2018 'SR/gsr'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 31st August, 2018 + EX.F.A. 36/2018 GAUTAM MODI ..... Appellant Through: Mr. Rahul Sagar Sahay and Mr. Siddharth Bangar, Advs. Versus PRAVIN CHANDRA MODI (DECEASED) THR LRS ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No. 35491/2018 (for exemption) 1. Allowed, subject to just exceptions. 2. The application stands disposed of. EX.F.A. 36/2018 & CM No. 35490/2018 (for stay) 3. This Execution First Appeal impugns the order [dated 9th August, 2018 in Execution No. 41/2016 (New Number 54326/2016) of the Court of Senior Civil Judge-North] of dismissal of the objections filed by the appellant / defendant / judgment-debtor to the execution sought by the deceased respondent / plaintiff / decree-holder of judgment and decree [dated 12th February, 2015 in RCA No. 6/2014 of the Court of Additional District Judge-04, North-West] allowing the appeal of the deceased respondent / plaintiff / decree-holder and passing a decree in favour of the deceased respondent / plaintiff / decree holder and against the appellant / defendant / judgment debtor, of i) permanent injunction restraining the appellant / defendant / judgment debtor from entering, living in or otherwise using LIG Flat No.A-I/202 B, Lawrence Road, Delhi; and, ii) permanent injunction restraining the appellant / defendant / judgment debtor from causing any disturbance to residence of deceased respondent / plaintiff / decree-holder in the said flat and / or dispossessing the deceased respondent / plaintiff / decree-holder from the said flat. 4. The appellant/judgment debtor had raised several pleas in his objections. 5. One of the pleas in the objections was that the Court in which execution had been sought did not have jurisdiction to execute the decree as the decree was passed in appeal preferred by the deceased respondent / plaintiff / decree-holder against the judgment and decree of the Suit Court of dismissal of the suit. The said plea has been negated by the Executing Court by drawing the attention of the counsel for the appellant/judgment debtor to Section 37(a) of the Code of Civil Procedure, 1908 (CPC). 6. Another plea in the objections of the appellant/judgment debtor was, that a finding of title had been rendered in the decree in a suit for injunction and the Appellate Court thus did not have jurisdiction to pass the decree. The Executing Court has negated the said plea by reasoning that the judgement and decree of which execution was sought had attained finality and it was not open to the appellant/judgment debtor to raise the said plea in execution. 7. The third plea in the objections of the appellant/judgment debtor was, that the deceased respondent / plaintiff / decree-holder had obtained the decree on the basis of false and fabricated documents. Again, the Executing Court has rightly held that the said plea was also beyond the domain of the Executing Court. 8. The fourth plea in the objections of the appellant/judgment debtor was, that the wife and daughter of the deceased decree holder were necessary and proper party to the execution proceedings. The said plea has been negated, by reasoning that as per the registered Gift Deed executed by the deceased respondent/plaintiff/ decree holder, the persons who had been substituted in place of deceased respondent / plaintiff / decree-holder in the execution proceedings only were the beneficiaries of the property under the Gift Deed. It was further ordered that the said plea also was not open in execution proceedings. 9. The last plea of the appellant/defendant/judgment debtor in his objections was, that the appellant/judgment debtor, on demise of the deceased respondent/ plaintiff/ decree holder had become a co-sharer in the property. Again, it was reasoned by the executing court that the deceased respondent/plaintiff/decree-holder, in his life time, having executed the Gift Deed with respect to the property, there was no possib