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2013 DIGILAW 537 (UTT)

ALKA DEVI v. SHANKAR DUTT PATHAK

2013-08-20

PRAFULLA C.PANT

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. This revision filed under Section 115 of the Code of Civil Procedure, 1908, is directed against order dated 21.12.2010, passed by Ist Additional Civil Judge (Sr. Div.), Rudrapur District Udham Singh Nagar, in Misc. Case No.20 of 2006, whereby the said court has rejected the objections filed by the revisionist under Order XXI Rule 58 of the Code. 2. Heard learned counsel for the revisionist and learned counsel for the respondent No.1. 3. Brief facts of the case are that the respondent No.1 Shankar Dutt Pathak instituted a Suit No.89 of 1994, against respondent No.2 Jeewan Chandra Pandey and respondent No.3 Ishat Dev Housing Finance and Leasing Ltd. for recovery of money. The said suit was decreed vide judgment and decree dated 20.08.2001. The plaintiff (Decree Holder), thereafter, filed an Execution application, which was registered as Execution Case No.14 of 2002, for execution of the decree. In said execution case, notices were issued to the judgment debtors (respondent Nos. 2 & 3), whereafter, the property owned by respondent No.2 (judgment debtor) was attached. Thereafter, notices were issued under Order XXI Rule 35, and also publication was made in the newspaper, relating to attachment. In response to the said notices, revisionist Smt. Alka Devi filed objections under Order XXI Rule 58 of the Code of Civil Procedure, 1908, which was registered as Misc. Case No.20 of 2006. After inviting reply of the decree holder against the said objections, the Executing court framed as many as eight issues and recorded oral evidence of the parties, and also accepted the documentary evidence. After hearing the parties, the Executing court came to the conclusion that the objections filed by Smt. Alka Devi (third party/present revisionist) are liable to be dismissed, and accordingly, the same was dismissed vide impugned order dated 21.12.2010. Hence, this revision. 4. In the objections filed by the revisionist before the Executing court, it is stated that revisionist is bonafide purchaser of the property, situated in plot no.301/2, measuring 25ft x 41 ft (1025 Sq.ft. ) of village Khatima, Pargana Bilheri, District U.S. Nagar. It is pleaded by the revisionist before the Executing court that he purchased the property from one Madhe Singh. It is also admitted by the revisionist that said Madhe Singh purchased the property from Raj Kumar Singh, Power of Attorney holder of Jeewan Chandra Pandey (judgment debtor). ) of village Khatima, Pargana Bilheri, District U.S. Nagar. It is pleaded by the revisionist before the Executing court that he purchased the property from one Madhe Singh. It is also admitted by the revisionist that said Madhe Singh purchased the property from Raj Kumar Singh, Power of Attorney holder of Jeewan Chandra Pandey (judgment debtor). On the ground that the revisionist is bonafide purchaser, it is prayed before Executing court that property in question cannot be attached and sale, in execution for decree against Jeewan Chandra Pandey (respondent No.2/judgment debtor). 5. The objections filed by the revisionist before Executing court were contested by decree holder (respondent no.1), who stated that earlier Suit No.89 of 1994 was filed by the plaintiff/respondent no.1 against Jeewan Chandra Pandey (respondent no.2) in which an interim order was passed and respondent no.2/defendant (judgment debtor) was directed not to transfer the property. After said suit was dismissed with the observations that the plaint may be presented before the proper court. Thereafter, a Suit No.84 of 1997 was filed by plaintiff Shankar Dutt Pathak (respondent no.1) against respondent no.2 (Jeewan Chandra Pandey) and respondent no.3 Isht Dev Housing Finance and Leasing Ltd., for recovery of money. The said suit was admittedly decreed on 20.08.2001. The execution proceeding was initiated by the decree holder, who stated in his reply to the objections filed by third party/revisionist before the Executing court that revisionist is not a bonafide purchaser. It is alleged that his predecessor in title of revisionist had full knowledge of proceeding of the Suit No.89 of 1994, who sought impleadment in the said suit, which was rejected. It is also stated in the reply filed by decree holder before the Executing court to the objections of third party/revisionist that since the original judgment debtor Jeewan Chandra Pandey has knowingly got the property in suit transferred through its Power of Attorney holder Mr. Madhe Singh to defeat the execution of decree. As such, the objections filed by third party/revisionist are liable to be dismissed. 6. Madhe Singh to defeat the execution of decree. As such, the objections filed by third party/revisionist are liable to be dismissed. 6. The Executing court after recording the evidence and hearing the parties, concluded that though the revisionist (third party) is owner of the property in suit which he purchased through sale deed dated 02.08.2005 and she was in possession in the same after said transfer, but since the transaction between him and the seller was not bonafide and they were in the knowledge of the decree under execution, as such, the property in question which was owned by judgment debtor is subject matter of the attachment and sale, for satisfaction of the decree. 7. Sri Sarvesh Agarwal, learned counsel for the revisionist submitted that Executing court has erred in law in holding that the property owned by the revisionist is subject matter of the attachment and sale in a decree passed against Jeewan Chandra Pandey (respondent no.2). In this connection, findings given by Executing court on issue nos. 1 to 6 were referred on behalf of third party/revisionist. 8. This Court, on the consideration of the above submissions made on behalf of the revisionist and after going through the record, finds that Executing court has committed no error of law. It has come on the record that Raj Kumar Singh, power of attorney holder of Jeewan Chandra Pandey (judgment debtor) sought his impleadment in the suit and had full knowledge of the proceeding of the suit and there was interim order passed against defendant not to transfer the same, as such the transfer by him through his Power of Attorney holder, to Madhe Singh cannot be said to be bonafide transfer. Not only this, it has also come on the record that Smt. Alka Devi (revisionist) admitted in his cross examination that when he purchased the property, by then, the property had already been attached and he had seen the notice of the court affixed on the building. 9. In the above circumstances, it cannot be said that Smt. Alka Devi (present revisionist) is a bonafide purchaser. This Court is of the view that objections filed by him, against the attachment, had no merit in it. That being so, the rejection of the objections filed by the third party/revisionist, suffers from no illegality. 9. In the above circumstances, it cannot be said that Smt. Alka Devi (present revisionist) is a bonafide purchaser. This Court is of the view that objections filed by him, against the attachment, had no merit in it. That being so, the rejection of the objections filed by the third party/revisionist, suffers from no illegality. If the person having knowledge of decree and attachment are allowed to purchase the property and their objections are allowed against the attachment, this would only encourage the parties in defeating the decree passed by the competent court, and decree holder would never be able got executed the decree. The laws are to be interpreted and facts are required to be appreciated towards the goal of justice and not for defeating the justice. 10. For reasons as discussed above, this Court finds, no force in this revision, which is liable to dismissed summarily. The revision is dismissed summarily. (Stay application No.2034 of 2011 also stands dismissed).