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2000 DIGILAW 1202 (PNJ)

Ishwar Singh v. Singh Ram

2000-10-04

BAKHSHISH KAUR

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JUDGMENT Bakhshish Kaur, J. (Oral) - This revision petition has been directed against the order dated March 29, 1997 as the objection petition filed by the objector-respondent was accepted. 2. Ishwar Singh-petitioner, had filed a suit for recovery of Rs. 20,470.95 against Singh Ram-defendant (hereinafter referred to as the judgment-debtor), and a decree to that effect was passed in his favour on December 16, 1989. During the pendency of the suit, an application under Order 38 Rule 5 CPC was filed by the petitioner and the property of the judgment-debtor was attached on July 18, 1989. Since the judgment-debtor failed to pay the decretal amount, therefore, petitioner has to file the suit for the recovery and realisation of the decetal amount. As the property was already attached, therefore, steps were taken for the auction of the entire property. 3. On getting notice of the same, Chattar Singh (hereinafter referred to as the objector) filed the objection petition on the grounds that his property cannot be put to auction as he has already purchased it vide sale deed dated July 18, 1989. He is a bona fide purchaser. 4. The objection petition was resisted by the decree-holder. Thus, the following issue, besides the issue of relief, was framed by the trial Court : "(1) Whether the objector is bona fide purchaser for valuable consideration, as alleged ? OP Objector." 5. The finding on issue No. 1 was answered in favour of the objector, as a result of which the objection petition was accepted and the property belonging to the objector, which was attached by the Court, was ordered to be released from attachment. 6. Shri R.S. Sangwan, counsel for the petitioner has mainly contended that the pre-decree matter could not be questioned by the Executing Court during the execution proceedings because the property was already attached before the passing of the decree. Thus, the trial Court was in error in accepting the objection and to support his argument, he has placed reliance on Smt. Hardial Kaur v. Pokhar Singh (deceased) represented by LRs. and others, 1988 PLJ 25." 7. There is no dispute to the proposition of law and it is well settled that the Executing Court cannot go behind the decree. The facts of the present case are factually different from the case of Smt. Hardial Kaur (supra). and others, 1988 PLJ 25." 7. There is no dispute to the proposition of law and it is well settled that the Executing Court cannot go behind the decree. The facts of the present case are factually different from the case of Smt. Hardial Kaur (supra). In the given case in hand, the objector had purchased the property in dispute on July 18, 1989 and probably on the same day the order under Order 39 Rule 5 CPC was passed by the Court and it is in an admitted fact that no prior notice to the judgment-debtor was issued by the Court before passing any order under Order 38 Rule 5 CPC. 8. Order 38 Rules 5 of the Code of Civil Procedure reads as under :- "5. Where defendant may be called upon to furnish security for production of property. - (1) Where at any stage of a suit, the Court is satisfied by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him, - (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." (Emphasis laid) 9. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." (Emphasis laid) 9. The next contention put forth by the learned Counsel is that the objector has never raised any objection nor he has challenged the order of attachment, therefore, legality of the order could not be gone into by the Executing Court. This argument is devoid of merit because the provision envisaged under Order 38 Rule 5 is very clear which provides that if an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void. 10. During the course of arguments, learned Counsel for the respondents has produced a certified copy of the order passed by the Executive Court on an application, filed by the petitioner, mentioning therein the list of property of the judgment debtor and warrant of attachment has accordingly been issued. Thus, where the petitioner had already taken recourse for realising the decretal amount from the property owned or possessed by the judgment-debtor, then respondents cannot be made liable for payment. 11. Taking into consideration all these facts and having conspectus of the case, no case is made out to interfere with the impugned order. 12. Dismissed. Petition dismissed.