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2017 DIGILAW 1794 (PNJ)

Kunj Chowdry v. Natha Singh

2017-08-10

ANIL KSHETARPAL

body2017
JUDGMENT : ANIL KSHETARPAL, J. 1. The third party objectors have filed this revision petition under Article 227 of the Constitution of India against the order dated 31.05.2017 (Annexure P-3) passed by the Additional Civil Judge (Senior Division), Dhuri, in an execution petition. 2. The brief facts necessary for the disposal of this revision petition are that Natha Singh filed a suit for recovery against the Judgment Debtor-Pawan Kumar on 24.11.2004 on the basis of a pronote and a receipt. The aforesaid suit was decreed on 31.08.2007. It is asserted by the Decree Holder that he had sought relief of attachment or in the alternative relief of injunction, which was granted vide order dated 22.01.2005 against Judgment Debtor-Pawan Kumar. However, one Sh. Rajiv Chowdry purchased the property from Pawan Kumar-Judgment Debtor vide sale deed dated 01.06.2009 in violation of the injunction order. It is alleged that the Judgment Debtor in connivance with Rajiv Chowdry, solely with a view to defeat the recovery rights, executed the sale deed without any consideration. 3. It is further asserted that Rajiv Chowdry (Chartered Accountant) and Sanjiv Chowdry (Advocate) practicing in Civil Court, Dhuri are brothers. Rajiv and Sanjiv had knowledge of the recovery suit and execution proceedings. 4. In another civil suit filed by one Krishan against Rajiv Chowdry, decree was passed against Rajiv Chowdry for recovery of approximately Rs.8,20,000/-. In execution thereof, property purchased by Rajiv Chowdry vide sale deed dated 01.06.2009 from Pawan Kumar was sold for a sum of Rs.26,65,000/- through Court Auction. 5. Out of the sale proceeds, Krishan Kumar was paid the decreed amount. Remaining amount is with the Executing Court. 6. In the execution petition filed by Natha Singh, Decree Holder in the present case, the amount deposited with the Executing Court has been attached vide order dated 11.09.2015. 7. Kunj Chowdry and Gulshan Chowdry, son and wife of Rajiv Chowdry filed the objections to the attachment order and prayed for release of the amount. The aforesaid application was contested by Natha Singh and it was stated that sale deed was result of collusion between Rajiv Chowdry and Pawan Kumar-Judgment Debtor with a view to frustrate the execution of the money decree. The property was first sold to Rajiv Chowdry in violation of the injunction order and thereafter it was allowed to be sold through Court Auction in a decree against Rajiv Chowdry. The property was first sold to Rajiv Chowdry in violation of the injunction order and thereafter it was allowed to be sold through Court Auction in a decree against Rajiv Chowdry. It may be significant to note here that Rajiv Chowdry is not traceable. 8. The Learned Court after noticing these facts has ordered framing of issues and directed Decree Holder-Natha Singh to give the list of other property of Judgment Debtor. The operative part of the order passed by the Executing Court is extracted as under:- “5. Perusal of the case file reveals that the DH has filed the present execution for recovery of Rs.11,28,000/- on the basis of judgment and decree dt. 31.8.2007. In the present execution petition, vide order dt. 11.09.2015 on the applications of the DH, an amount of Rs.26,65,000/- lying deposited in execution No.20 dt. 19.1.2012 titled as Krishan Kumar Vs. Rajiv Kumar, was attached. Now, the present objections have been filed by Kunj Choudhary and Gulshan Choudhary on the ground that the JD of the execution titled as Krishan Kumar Vs. Rajiv Choudhary i.e. Rajiv Choudhary was bonafide purchaser of the suit property and he has no concern with the present execution and the amount already deposited in the execution titled as Krishan Kumar Vs. Rajiv Choudary is liable to be released. On the other hand, ld. Counsel for the DH has pleaded that the property sold in other execution titled as Krishan Kumar Vs. Rajiv Choudhry was earlier owned by JD Pawan Kumar and the same was purchased by Rajiv Choudhary in connivance with the JD Pawan Kumar after passing of decree dt. 31.8.2007 to delay and defeat the recovery rights of the DH. In view of the allegations made by both the parties, I am of the considered view that to decide the present objections effectively, the evidence of both the parties is required to be led to reach the conclusion whether the said Rajiv Choudhary was bonafide purchaser for valuable consideration or whether the said sale deed was executed by JD Pawan Kumar in connivance with said Rajiv Choudhary to delay and defeat the rights of the DH. Accordingly, from the pleadings of the parties, following issues were framed:- 1. Whether Rajiv Choudhary was bonafide purchaser for valuable consideration in good faith? OP Objector 2. Whether the present objectors are the legal heirs of Rajiv Choudhary? OP Objector. 3. Accordingly, from the pleadings of the parties, following issues were framed:- 1. Whether Rajiv Choudhary was bonafide purchaser for valuable consideration in good faith? OP Objector 2. Whether the present objectors are the legal heirs of Rajiv Choudhary? OP Objector. 3. Whether the sale deed dt. 01.06.2009 has been executed by the JD in connivance with Rajiv Choudhary to delay and defeat the recovery rights of DH? OPDH 4. Whether the amount already attached in the present execution is liable to be disbursed to the DH? OPDH 5. Relief. 6. Now to come up on 01.07.2017 for evidence of the Objector. 9. In the mean time, let efforts be made to realize the decretal amount from the other properties of the JD. Let warrants of attachment of the property of JD be also issued for 01.07.2017 on filing of fresh list of properties.” 10. Kunj Chowdry and Gulshan Chowdry have filed the present revision petition challenging the aforesaid order. 11. Learned counsel for the petitioners has submitted that by continuing the attachments and framing of issues, the Court had in fact doubted the Court auction, held in execution petition titled as Krishan Vs. Rajiv Chowdry, which cannot be permitted. He further submits that once the sale has been confirmed and sale certificate has been issued with respect to the Court auction of the property owned by Rajiv Chowdry, Natha Singh had no locus standi to challenge the aforesaid sale through Court auction. 12. He further submitted that Court auction can only be set aside as per the procedure prescribed under Order 21 CPC and, therefore, the order is liable to be set aside. 13. I have heard learned counsel for the petitioners at length and with their able assistance gone through the record. 14. The learned Executing Court has only framed the issues and directed the parties to lead evidence. The objections filed by the petitioners i.e. Gulshan Chowdry and Kunj Chowdry have not been decided. Only attachment order has been continued for sometime so that the parties can lead evidence. 15. The submission of learned counsel for the petitioners is that the Court auction which has been confirmed in execution petition titled as Krishan Vs. Rajiv Chowdry is being questioned which is not permissible. In this respect, it is observed that the Executing Court is only trying to find out the correct facts. 15. The submission of learned counsel for the petitioners is that the Court auction which has been confirmed in execution petition titled as Krishan Vs. Rajiv Chowdry is being questioned which is not permissible. In this respect, it is observed that the Executing Court is only trying to find out the correct facts. The parties have been permitted to lead evidence. If ultimately, the Court finds that the sale by Pawan Kumar-Judgment Debtor was in fact executed to defeat the rights of the Decree Holder, then the Court can pass an appropriate order. The Executing Court is certainly entitled to find out the truth after giving opportunities to the parties to lead evidence. At present, the Court was only having the facts mentioned in the reply to the objection petition. Therefore, the learned counsel is not right in asserting that the Court auction is being challenged. 16. Learned counsel for the petitioners has further submitted that once sale has been confirmed, it can only be set aside as per the procedure prescribed under Order 21 CPC and the procedure being followed by the Court is against the provision of Order 21. 17. I have heard the submission. However I am unable to agree with the same. 18. The learned Executing Court has only framed the issues and even directed the Decree Holder to find out the other properties of Judgment Debtor. There is no challenge to the sale by the Court auction which has been confirmed at present. However, if the Court ultimately finds that there was some fraud played by Pawan Kumar in collusion with Rajiv Chowdry and Sanjiv Chowdry, the Court would pass an appropriate order as required to do justice between the parties. Finding no merit, the present revision petition is dismissed. 19. However, the Learned Executing Court is requested to expedite the proceedings. The learned Executing Court is also requested to invest the amount available with the Executing Court in a Fixed Deposit with Nationalized Bank so that none of the party suffers.