Search By Topic: Civil Procedural Law

452. (SC) 06-07-2022

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97 -- Bonafide purchaser – Right to file objections -- It is only the ‘decree holder’ who is entitled to make an application in case where he is offered resistance or obstruction by ‘any person’ -- Appellant is a bonafide purchaser of the property and not the ‘decree holder’ – Held, appellant cannot take shelter of Rule 97 to raise objections against execution of decree passed in favour of respondent.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 99 -- Bonafide purchaser – Right to file objections -- Rule 99 pertains to making a complaint to the Court against ‘dispossession’ of the immovable property by the person in ‘possession’ of the property by the holder of a decree or purchaser thereof -- Appellant purchased property vide sale deed dated 12.04.2004 and has been in vacant and physical possession of the property since then -- Had it been the case that the appellant was dispossessed by the respondent trust in execution of decree dated 02.09.2003, the appellant would have been well within the ambit of Rule 99 to make an application seeking appropriate relief to be put back in possession – Appellant cannot be said to be entitled to make an application under Rule 99 raising objections in execution proceedings since he has never been dispossessed as required under Rule 99.

(Para 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 97, 99, 101 -- Bonafide purchaser – Right to file objections -- Applications under Rule 97 and Rule 99 are subject to Rule 101 which provides for determination of questions relating to disputes as to right, title or interest in the property arising between the parties to the proceedings or their representatives on an application made under Rule 97 or Rule 99 – Order XXI Rule 101 has no applicability as the appellant is neither entitled to make an application under Rule 97 nor Rule 99.

(Para 16)

453. (SC) 05-07-2022

A. Code of Civil Procedure, 1908 (V of 1908), Section 96 – Civil suit –First appeal – Nature of -- Appeal is a continuation of the proceedings of the original court -- Ordinarily, in the first appeal, the appellate jurisdiction involves a rehearing on law as well as on fact as invoked by an aggrieved person -- First appeal is a valuable right of the appellant and therein all questions of fact and law are open for consideration by reappreciating the material and evidence -- Therefore, the first appellate court is required to address on all the issues and decide the appeal assigning valid reasons either in support or against by reappraisal -- Court of first appeal must record its findings dealing all the issues, considering oral as well as documentary evidence led by the parties.

(Para 8)

B. Code of Civil Procedure, 1908 (V of 1908), Section 96 – Joint appeal  Application seeking permission to file joint appeal – Admission of appeal – Effect of – First appeal dismissed accepting the preliminary objection regarding maintainability applying the principle of res-judicata – Application seeking permission not decided – Held approach adopted by the High Court in dismissing the admitted first appeal after a lapse of decade without deciding the application has effectively deprived the appellant of its right to take its recourse by rectifying the defect and to be heard on merits – Matter remanded back to High Court with a request to decide the application, prior to deciding the preliminary objection of maintainability.

(Para 10, 11)

C. Code of Civil Procedure, 1908 (V of 1908), Section 96 – Joint appeal against common judgment and two decrees -- Procedural defects – Substantial justice -- It is a trite law that the procedural defect may fall within the purview of irregularity and capable of being cured, but it should not be allowed to defeat the substantive right accrued to the litigant without affording reasonable opportunity.

(Para 11)

455. (SC) 13-06-2022

A. Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Long years living as husband and wife – Birth of child – Presumption of -- It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock -- Such a presumption could be drawn under Section 114 of the Evidence Act -- Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.

(Para 15)

B. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 – Partition suit – Preliminary Decree – Final Decree – Role of -- Preliminary decree declares the rights or shares of the parties to the partition -- Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed.

(Para 29, 30)

C. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 – Preliminary decree -- Final decree – Limitation – Nature of -- Final decree proceedings can be initiated at any point of time -- There is no limitation for initiating final decree proceedings -- Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose -- By mere passing of a preliminary decree the suit is not disposed of.

(Para 31)

D. Code of Civil Procedure, 1908 (V of 1908), Order 20 Rule 18 -- Preliminary decree – Final decree – Directions issued to Trial Courts -- Once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu -- After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC -- The courts should not adjourn the matter sine die -- There is also no need to file a separate final decree proceedings -- In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree – Suit comes to an end only when a final decree is drawn – Directions given to Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

(Para 32, 33)

466. (P&H HC) 10-05-2022

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Punjab Courts Act, 1918 (6 of 1918), Section 41 -- Regular Second Appeal – Substantial question of law – Requirement of -- There is no requirement for framing of substantial questions of law.

(Para 10)

B. Registration Act, 1908 (16 of 1908), Section 17(1)(b), 49 – Transfer of immovable property – Compulsory registration – Requirement of -- Transfer of immovable property by way of sale can only be by a deed of conveyance / sale deed -- Without a stamped and registered deed of conveyance / sale deed, no right, title or interest in immovable property can be transferred -- Under the provisions of Section 17 of the Registration Act, 1908 where immovable property of the value of more than 100/- is conveyed, such sale could only be effected by a document of sale duly registered -- Section 17(1)(b) mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the said Act imposes a bar on the admissibility of an unregistered document and deals with the documents that are required to be registered u/s 17.

(Para 14, 15)

C. Registration Act, 1908 (16 of 1908), Section 17(1)(b) – Transfer of immovable property by Pratigya Patra – Compulsory registration of – Requirement of -- Since, the ‘Pratigya Patras’ have the effect of creating and taking away the rights in respect of the suit property, they required registration under Section 17 of the Registration Act, 1908 -- Since both the ‘Pratigya Patras’ have not been registered, they cannot be taken into account to the extent of the transfer of the suit property.

(Para 15)

476. (P&H HC) 19-04-2022

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A (Haryana) -- Shamilat deh/ Gram Panchayat land – Title dispute – Jurisdiction of civil Court -- Jurisdiction to decide any dispute as to whether any right, title or interest in any land or immovable property vests in the Gram Panchayat or not, would exclusively lie with the Collector, to the exclusion of the Civil Court.

(Para 9)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13, 13-A (Haryana) -- Shamilat deh/ Gram Panchayat land – Title dispute – Suit for injunction -- Relief claimed in the civil suit involves the adjudication of rights of the parties over the suit property, hence, the jurisdiction of the Civil Court over the matter would, therefore, be barred u/s  13 of the Act.

(Para 10)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13-A(1)(2) (Haryana) -- Shamilat deh/ Gram Panchayat land -- Injunction – Power of Collector – Contention that there was no alternative remedy available to plaintiffs for restraining the defendants, is devoid of any merit -- Section 13-A(2) of the Act provides for deciding the suits under Section 13-A(1) in the same manner, as is provided for, in the Code of Civil Procedure (CPC) -- Hence, the Collector also does have all such incidental powers to decide the suit effectively and also has the powers to grant injunction.

(Para 11)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Rejection of plaint – Power of – Nature of – Stage of -- Trial Court erred in observing that since the evidence had commenced, an application under Order 7 Rule 11 of CPC was not maintainable -- Powers of the Court conferred under Order 7 Rule 11 of CPC are mandatory in nature and can be exercised at any stage of the suit, but before the conclusion of the trial.

(Para 13)

478. (P&H HC) 18-04-2022

A. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97, Section 151 -- Decree for permanent injunction – Police help for enforcement – Right of – Objection as to co-sharer and availability of remedy for partition – Once the suit for permanent injunction stood decreed the Executing Court could not render the said decree nugatory by holding that the petitioner ought to file a suit for partition -- A perusal of the judgement passed by the Trial Court while decreeing the suit for permanent injunction shows that at no point was a defence raised by respondent no.1 that he is a co-sharer in the suit land – Executing Court held that respondent no.1 is a co-sharer in the suit property and, hence, the only remedy with the petitioner/decree-holder would be to file for partition and dismissed the application – Held, Executing Court permitted the respondent no.1 to set-up a case beyond that pleaded by him in the suit itself – Impugned order is illegal and suffers from jurisdictional errors -- Revision allowed -- Impugned order set aside, application for providing police help for enforcement of the judgment and decree allowed and the objections filed by the respondent are dismissed.

(Para 1, 12-19)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 97, Section 151 -- Decree for permanent injunction – Police help for enforcement – Additional documents in Execution – Reliance upon – Legality of -- Executing Court relied upon certain revenue documents to non-suit the petitioner -- However, these revenue documents were not part of any evidence and were merely produced by respondent no.1 -- Without any issues having been framed and evidence being led, the Executing Court could not accept any document merely produced by any party -- Procedure adopted by the Executing Court cannot be accepted -- Procedure adopted by the Executing Court cannot be accepted.

(Para 15)