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2008 DIGILAW 1552 (PNJ)

Surjit singh v. Jasmel Kaur & Anr

2008-09-09

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - The petitioner challenges the order dated 14.6.2006 passed by the learned Additional District Judge, Barnala vide which appeal against the order of the learned trial court was allowed and the objections to the execution of the decree were ordered to be dismissed. 2. The decree holder in order to execute the money decree got attached the land in question. The petitioner filed objection to the execution of the decree on the plea that he is owner in possession of the land measuring 15 Kanals 17 Marlas on the basis of registered sale deeds dated 28.2.2001 and 2.3.2001. He further claimed that he was bona fide purchaser of the land for consideration and therefore, the decree holder had no right or concern to get the land attached. 3. Learned Executing Court came to the conclusion that the order of attachment was not reflected in the revenue record when the land was sold in favour of the petitioner. Thus, the learned Executing Court came to the conclusion that the decretal amount could only be claimed from the land of the judgment debtor only, thus allowed, the objection petition by observing that the land of the petitioner was wrongly got attached instead of attaching the property of judgment debtor. Learned Executing Court ordered forthwith the release of the attached land. 4. Learned lower appellate court observed that the land purchased by the petitioner objector was attached on 3.2.2001, whereas the land is said to have been purchased by the objector petitioner on 28.2.2001 and 2.3.2001. The lower appellate court observed that the sale deed set up by the objector was void ab initio and was hit by the doctrine of lis pendens. Learned lower appellate court observed that the plea of bona fide purchaser was not available to the objector petitioner on the principal of lis pendens. 5. The learned lower appellate court reversed the finding by recording a finding that : "7. I have considered the arguments advanced by the learned counsel for the parties and carefully gone through the main suit filed, execution file and the authorities cited by the learned counsel for the appellant/DH Jasmel Kaur. 5. The learned lower appellate court reversed the finding by recording a finding that : "7. I have considered the arguments advanced by the learned counsel for the parties and carefully gone through the main suit filed, execution file and the authorities cited by the learned counsel for the appellant/DH Jasmel Kaur. Learned Executing Court by passing the order under appeal has not correctly appreciated the order dated 3.2.2001 vide which the land of Hari Singh JD was attached before judgment, meaning thereby that Hari Singh JD was well aware about the attachment of his land before judgment in Civil Suit No. 20. Hari Singh intentionally and with mala fide intention in order to defeat, frustrate and forfeit the valuable right of Jasmel Kaur, transferred his land in favour of objector Surjit Singh. Where Section 52 of the Transfer of Property Act is applicable then the vendee is debarred from taking the plea of bona fide purchaser. Moreover, all the latest case laws cited by the learned counsel for the appellant/DH are fully applicable from all four to the facts and circumstances at hand. Thus by applying the ratio of the authorities cited by the learned counsel for the appellant/DH, I came to the conclusion that the sale deeds set up by the objector are directly hit and governed the doctrine of lis pendece. so these sale deeds are not valid and legal sale deeds in the eye of law. It is also pertinent to mention here that the learned counsel for the respondent/objector failed miserably to cite any authority in reply to the authorities cited by the Ld. Counsel for the appellant/DH." 6. However, while disposing of the appeal learned lower appellate court observed that the Executing Court should have framed issues arising from the pleadings and thereafter should have decided the matter instead of summarily disposing of the same. The learned appellate court for the reasons referred to above accepted the appeal and set aside the order passed by the executing court. 7. Mr. Kanwaljit Singh, learned senior counsel appearing on behalf for the petitioner by referring to the observation made by the learned lower appellate court contended that the impugned order cannot be sustained as the learned lower appellate court was required to remand the case back to the learned trial court for adjudication after framing of issues. 8. 7. Mr. Kanwaljit Singh, learned senior counsel appearing on behalf for the petitioner by referring to the observation made by the learned lower appellate court contended that the impugned order cannot be sustained as the learned lower appellate court was required to remand the case back to the learned trial court for adjudication after framing of issues. 8. Learned senior counsel by placing reliance on the judgment of Honble Delhi High Court in the case of Canara Bank v. Gurmukh Singh 2000(2) RCR(Civil) 45 contended that objection under Order 21 Rule 58 of the Code of Civil Procedure were required to be disposed of by following procedure akin to that of disposal of suit. 9. Learned senior councel for the petitioner also referred to the judgment of this court of this case of Nirmal Kaur and another v. Balbir Singh and another 2006(4) RCR (Civil) 458 to contend that third party property cannot be sold for execution of a decree against the judgment debtor unless the sale transaction is held to be sham and fictitious. The contention of the learned senior counsel, therefore, was that it was for the parties to lead evidence to prove the fact that the transaction was sham and fictitious and in the absence of said findings the objections of the petitioner could not have been summarily rejected. 10. Learned senior counsel for the petitioner then referred to the judgment of Honble Supreme Court in the case of Amit Kumar Shaw & Anr. v. Farida Khatoon & Anr. 2005(2) RCR(Civil) 651 to contend that in order to attract the provision of Section 52 of the Transfer of Property Act, following elements are required to be fulfilled :- "(1) There must be a suit or proceeding in a court of competent jurisdiction. (2) The suit for proceedings must not be collusive. (3) The litigation must be one in which right to immovable property is directly and specifically in question. (4) There must be a transfer of, or otherwise dealing with the property in dispute by any party to the litigation. (5) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. The contention of learned senior counsel is that the stipulations referred to above are not fulfilled in the present case to attract Section 52 of the Transfer of Property Act. 11. (5) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order. The contention of learned senior counsel is that the stipulations referred to above are not fulfilled in the present case to attract Section 52 of the Transfer of Property Act. 11. However, on consideration of the matter, I find no force in the contentions raised by the learned counsel for the petitioner. It is well settled law that the objections which on the face of it are frivolous can be summarily rejected. Procedure akin to disposal of suit is required to be held only in case prima facie case is made out. 12. As already observed above, the petitioner purchased the property after the order of attachment and therefore, learned lower appellate court rightly observed that the sale in favour of the petitioner was hit by the principal of lis pendens as on date of sale suit was pending and the said proceedings were not collusive. The property having been attached was directly in issue. The transfer in favour of petitioner was made by party to litigation and the transfer was to effect right of decree holder in the event of success. All the elements to attract provisions of Section 52 of the Transfer of Property Act stand fulfilled. 13. Merely because learned lower appellate court made certain observations with regard to framing of issue which did not arise in the present case, cannot be a ground to challenge the order which is based on sound principles of law. The objections being fictitious were rightly dismissed. No merit. Dismissed. Petition dismissed.