MUKTA GUPTA, J. - (1.) BY this review petition the Petitioner who was the Appellant in FAO (OS) 66/2002 seeks review of the judgment dated 19 th February, 2010 delivered by this Court dismissing the appeal filed by the Appellant.
(2.) BRIEF facts relevant to the filing of the present review petition are that the Respondent No. 1 Kuldeep Singh filed a suit for specific performance based on an Agreement to sell dated 29th/30th July, 1980 in respect of property No.9, Sunder Nagar, New Delhi valued at '14 lakhs wherein he paid 10% of the consideration, that is '1.40 lakhs at the time of Agreement to Sell and sought specific performance of the said agreement showing willingness to pay the balance consideration. The suit filed on 17th February, 1982 was decreed on 30th April, 1984 in terms of Order VIII Rule 10 CPC as despite repeated opportunities, the Appellant/Review Petitioner and Defendants in the suit failed to file their written statements. Against the decree dated 30th April, 1984, the Petitioner/Appellant and other judgment debtors filed an appeal which was dismissed as time barred on the 29th March, 1985. An application under Order IX Rule 13 CPC was also filed before the learned Single Judge which was dismissed vide order dated 15th July, 1985. The Respondent no.1/Plaintiff/Decree Holder filed Execution Petition No. 164/190 wherein the review petitioner filed his objections which were registered as Execution Application No. 110/1991. The principal contention urged before the Executing Court was that the decree is not a decree and even if it was held to be a decree, it was not an executable decree. Both these objections were dismissed by the Executing Court and thus, feeling aggrieved by the order dated 1st February, 2002 the Petitioner filed FAO (OS) 66/2002. Along with the petitioner/Appellant, one Rajender Kumar had also filed his objections to the Execution being EA No. 111/1991 on the ground that he was a minor and no decree could be executed contrary to his interest. The learned Single Judge vide judgment dated 1 st February, 2002 dismissed the said application on the ground that no decree has been passed against 1/24th share of the (Rajender Kumar) minor and thus there was no decree being executed against his interest. The said Rajender Kumar filed an appeal being EFA 4/2002 which was also dismissed by the judgment under review dated 19th February, 2002 however, no review petition has been filed in the said appeal. In FAO (OS) 66/2002, this Court considered the contentions of the learned counsel for the Appellant/Review Petitioner that the decree was neither a valid decree nor was it executable. This Court following the decisions in Diwan bros. vs. Central Bank of India, Bombay and Ors., AIR 1976 SC 1503 and Balraj Taneja and Anr. v. Sunil Madan and Anr., 1999 (8) SCC 396 held that it was a decree. It was further held that a reading of the plaint before the learned Single Judge shows that there was no fact that needed to be proved despite a deemed admission. The only fact that could be in dispute was whether Rajender Kumar is the minor son of Din Dayal or not, but this issue was not decided by the learned Single Judge as indeed it was not necessary to decide, given the facts of the case and the prejudice that may be caused to Rajender Kumar in deciding the controversy notwithstanding the earlier suit filed by Rajender Kumar. On the deemed admission of the judgment debtors the facts that did not need to be proved were accepted and a judgment passed against them without getting into the controversy relating to the question whether Rajender Kumar was a minor son of Din Dayal or not. Thus, the parameters laid down by the Hon'ble Supreme Court in Balraj Taneja (supra) were met by the learned Single Judge and his judgment could not be faulted.
(3.) THE objection of the learned counsel for the Appellant/petitioner that the Executing Court expanded the scope of original decree and thus created a new decree was also considered in the light of the decision of the Hon'ble Supreme Court in V. Ramaswami Ayyangar and Ors. vs. T.N.V. Kailasa THEvar, AIR 1951 SC 891. It was held that the Executing Court has not created any new decree nor has made any change, substantially or otherwise in the decree as originally framed on 30 April, 1984. All that the Executing Court had done was to enforce the decree already passed in terms of the prayer made by Kuldeep Singh. The contention that the decree was incapable of being executed as the 1/24th share of Rajender Kumar was not determined was also rejected as Mohinder Kumar Gupta, the Appellant/Review Petitioner could not have any independent grievance against the decree on the basis of a suit filed by Rajender Kumar. It was held that it is well settled that the decree has to be executed as it is and it is really Kuldeep Singh and Rajender Kumar who have to take a call on the 1/24th share of Rajender Kumar and Mohinder Kumar Gupta does not come into the picture at all and cannot be allowed to speak on behalf of Rajender Kumar particularly since Rajinder Kumar had filed independent objections to the decree.;