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2003 DIGILAW 580 (PNJ)

Harbans Lal Raj Rishi v. Lachhman Dass Rajesh Kumar

2003-04-24

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 28th March, 2003 passed by the executing Court, Pehowa dismissing the objections of the judgment-debtor-petitioner (for brevity. JD-Petitioner). The executing Court has found that the family settlement dated 12th December, 2000 Ex.A1 was the result of collusion and was prepared in order to defeat the rights of the decree holder-respondent (for brevity, DH-respondent) because the decree was passed on 24th November, 2000. No appeal against the aforementioned decree was preferred by the DH-Petitioner. It is in these circumstances that the argument that the JD-Petitioner has only one house, and, therefore, it cannot be subject matter of attachment under Section 60 of the Code has been rejected by the Executing Court. 2. Shri Pritam Saini, learned counsel for the JD-Petitioner has argued that the interest at the rate of 18% per annum from the date of transaction cannot be enforced nor the residential house of the JD-Petitioner could be attached. 3. After hearing the learned counsel, I find that no argument with regard to interest was raised before the executing Court. Admittedly, interest at the rate of 18% per annum has been awarded in the decree which has attained finality. The aforementioned decree cannot now be reopened to challenge the rate of interest imposed and accepted by the JD-Petitioner. If the JD-Petitioner fell aggrieved by the award of interest by the Court passing the decree, then it could have filed an appeal before the higher Courts. The JD-Petitioner allowed the decree to attain finality and now raising this objection before this Court for the first time. Such an objection cannot now be raised because the executing Court cannot go behind the decree. In support of this view reliance can be placed on a Division Bench judgment of Delhi High Court in Foremost Industries India Ltd. v. Ram Sarup Khuttar, A.I.R. 1993 Delhi 84. Therefore, I do not find any merit in the aforementioned submission of the learned counsel. 4. The argument raised on the basis of Section 60 of the Code that there is only one house and it cannot be subjected to attachment does not impress me for the reason that before the family settlement, admittedly this firm has more than one houses alongwith some shops. 4. The argument raised on the basis of Section 60 of the Code that there is only one house and it cannot be subjected to attachment does not impress me for the reason that before the family settlement, admittedly this firm has more than one houses alongwith some shops. In the list of properties furnished by the DH-respondent, the details have been given. A perusal of the impugned order makes it absolutely clear that the decree was passed on 24th November, 2000 and the family settlement was reached on 12th December, 2000. It was an attempt to defeat the decree by the aforementioned family settlement and a result of collusion between the JD-Petitioner and his brothers. Therefore, I do not feel persuaded to accept the averment advanced by learned counsel for the JD-Petitioner. The revision petition is devoid of merit and is thus liable to be dismissed. 5. For the reasons recorded above, this petition fails and the same is dismissed.