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2021 DIGILAW 1549 (RAJ)

Manju Garg v. Prakash Chand Goyal

2021-08-18

PRAKASH GUPTA

body2021
JUDGMENT Prakash Gupta, J. - Order 18/08/2021Civil Execution First Appeal No. 4/2021 has been filed by the objector-appellant (for short, 'the objector') under Section 96 CPC readwith Order 21 Rule 103 CPC against the order dated 20.7.2021 passed by the Executing Court in Civil Objection No. 98/2019 in Civil Execution Petition No. 22/2017 by which the objections filed by the objector under Order 21 Rule 58 have been dismissed. Similarly, Civil Execution First Appeal No. 5/2021 has been filed by the Objector under Section 96 CPC readwith Order 21 Rule 103 against the order dated 3.8.2021 passed by the Executing Court in Civil Objection No. 98/2019 in Execution Petition No. 22/2017, by which the objections filed by the Objector under Order 21 Rule 97 CPC have been dismissed. 2. Facts of the case are that the respondent-plaintiff-decree holder (for short, 'the decree holder') filed a suit against the respondent-defendant-judgment debtor (for short, 'the judgment debtor') for recovery of Rs. 81,24,786.23/-, which was decreed by the Court of Addl. District Judge, Tees Hajari Court, New Delhi vide its judgment dated 8.11.2016. The decree holder filed execution petition for satisfaction of the decretal amount alongwith interest, which, due to the property of the judgment debtor being situated in Jaipur, was transferred to Jaipur. During the pendency of the execution petition, the objector filed objections which came to be dismissed vide impugned orders. Hence, these two Civil Execution First Appeals. 3. Learned Sr. Counsel appearing for the objector submits that decree holder disclosed two properties of the judgment debtor, (i) House N. 231/C, Gyan Marg, Tilak Nagar, Jaipur admeasuring 708 Sq. Yards and (ii) Shop No. 115, Ganpati Plaza, MI Road, Jaipur admeasuring 700 Sq. Ft. He further submits that objector is the owner of House No. 231/C, Gyan Marg, Tilak Nagar, Jaipur as possession of the said property was handed over to her by the judgment debtor on the basis of a family settlement by way of gift deed dated 20.7.2009, which was got registered on 12.9.2018. In this way, the objector is having the possession over the attached property since 2009 and the decree holder has no concern whatsoever with the attached property. He further submits that under sub-rule (2) of Rule 58 of Order 21 CPC, the executing Court ought to have adjudicated upon the objections filed by the objector and no separate suit could have been filed. He further submits that under sub-rule (2) of Rule 58 of Order 21 CPC, the executing Court ought to have adjudicated upon the objections filed by the objector and no separate suit could have been filed. For this purpose, the Executing Court was to hold a full-fledged enquiry and decide the dispute on merits, but it did not do so. 4. He further submits that since ex-parte judgment and decree came to be passed against the judgment debtor by Tis Hazari Court at Delhi on 8.11.2016, he filed an application under Order 9 Rule 13 CPC, which was allowed vide order dated 24.7.2018. Thereafter the decree holder filed CM (M) 940/2018 & CM Appl. No. 33154/2018 before Delhi High Court and the Delhi High Court vide its order dated 4.7.2019 allowed the petition, set-aside the order dated 24.7.2018 passed by the Trial Court and dismissed the application filed by the judgment debtor under Order 9 Rule 13 CPC. He further submits that against the order dated 4.7.2019 passed by the High Court, the judgment debtor filed SLP before the Hon'ble Apex Court (Diary No. of which is 19042/2021), and the same is pending adjudication. He further submits that property worth about Rs. 7.00 crores is being sold at a very petty amount of Rs. 2.60 crores. He further submits that vide order dated 8.1.2015 passed by Debt Recovery Tribunal in case No. 27/2013, the property was attached. The objector paid Rs. 12.00 lakh and got the property redeemed. This aspect of the matter is very relevant. He further submits that unregistered gift deed can be seen for collateral purposes. In support of his submissions, he has placed reliance on the following judgments: (1) Bondar Singh and others Versus Nihal Singh and others reported in AIR 2003 Supreme Court 1905 (2) Shamsher Singh and another Versus Lt. Col. Nahar Singh (D) Thr. Lrs. and others reported in AIR 2019 Supreme Court 4840 (3) Shreenath and another Versus Rajesh and others reported in AIR 198 Supreme Court 1827 (4) Madanlal (Dead) by LRs and others Versus Yoga Bai (Dead) by LRs reported in AIR 2003 Supreme Court 1880 He prayed for setting aside the impugned orders passed by the Executing Court. 5. Lrs. and others reported in AIR 2019 Supreme Court 4840 (3) Shreenath and another Versus Rajesh and others reported in AIR 198 Supreme Court 1827 (4) Madanlal (Dead) by LRs and others Versus Yoga Bai (Dead) by LRs reported in AIR 2003 Supreme Court 1880 He prayed for setting aside the impugned orders passed by the Executing Court. 5. On the other hand, learned counsel for the decree holder submits that unregistered gift deed dated 20.7.2009 does not give any right or title over the attached property, for which sale warrant had already been issued by the Executing Court in lieu of satisfaction of the money decree. He further submits that there was no possession of the objector over the property in question. The objector is the mother of the judgment debtor and she does not reside in the attached property. He further submits that auction of the attached property has already taken place and part payment has been deposited by the highest bidder. Now only the sale is to be confirmed and sale certificate is to be issued. He further submits that immediately after passing the order dated 4.7.2019 passed by Delhi High Court, the judgment debtor did not file SLP before the Hon'ble Supreme Court and SLP was filed only after passing the order dated 20.7.2021 by the Executing Court. He further submits that even from the purported registered gift deed dated 12.9.2018, no right accrued in favour of the objector for the reason that the property had already been attached by the Debt Recovery Tribunal, by its order dated 8.1.2015 and thus the registered gift deed dated 12.9.2018 was null and void. He further submits that on 23.5.2017 at the time of attachment of the property by the Special Amin, the objector was also present at the property and the factum of attachment / auction of the property was well within her knowledge, but she in collusion with her son, got the forged gift deed prepared. The objector is not the judgment debtor, but she is stepping under the shoes of the judgment debtor. The impugned orders passed by the Executing Court are just and proper, hence no interference therewith is required by this Court. Heard. Considered. 6. The objector is not the judgment debtor, but she is stepping under the shoes of the judgment debtor. The impugned orders passed by the Executing Court are just and proper, hence no interference therewith is required by this Court. Heard. Considered. 6. The relevant provisions of Order 21 Rule 58 and Order 21 Rule 97 CPC are reproduced as under: R. 58 Adjudication of claims to, or objections to attachment of property (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained :- (a) where before the claim is preferred or objection is made, the property attached has already been sold: or (b) where the Court considers that the claims or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest to the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination- (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit: or (b) disallow the claim or objection : or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person : or (d) pass such order as in the circumstances of the case it deems fit (4) Where any claim or objection has been adjudicated upon under the rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1) refuses to entertain it, the party against whom such order is made institute a suit to establish the right which he claims to the property in dispute : but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. R. 97. Resistance or objection to possession of immovable property - (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 7. A careful reading of sub-rule (2) of Rule 58 of Order 21 CPC reveals that for adjudicating the questions relating to right, title or interest in the property attached, the question must have arisen between the parties to a proceeding or their representatives. 8. While adverting to the facts of the instant case, it is noticed that on 23.5.2017 even though the objector was present when the property in question was being attached, she did not file any objection immediately thereafter despite being well aware about the factum of attachment / auction. In order to delay the execution proceedings, she filed the objections in the year 2019 i.e. more than after a lapse of 2 years. 9. The executing court while dismissing the objections filed by the objector noted that the gift deed dated 20.7.2009 being unregistered and insufficiently stamped was not admissible in evidence, and bearing the signatures of only one witness was not a valid document, therefore, no right had accrued in favour of the objector from the said document. So far as gift deed dated 12.9.2018, which was registered on 17.9.2018, the Executing Court noted that the property in question had already been ordered to be attached by Debt Recovery Tribunal on 8.1.2015, which was subsequently redeemed on the basis of compromise between the parties. The said property was also attached by the Executing Court on 23.5.2017 and auction proceedings were going on. The said property was also attached by the Executing Court on 23.5.2017 and auction proceedings were going on. The objector and judgment debtor being mother and son, were well aware of the aforesaid fact. In order to fail the satisfaction of the decree, the judgment debtor in collusion with his mother (the objector), executed the registered gift deed dated 12.9.2018 of the property in question without obtaining prior permission of the Court, which was already under attachment of the Debt Recovery Tribunal and the Executing Court. For this reason, even from gift deed dated 12.9.2018, which was void ab-initio, no rights had accrued in favour of the objector. 10. The judgment passed by the Hon'ble Apex Court in the case of Shreenath and another (supra), relied upon by counsel for the objector relating to Order 21 Rule 97 CPC does not apply in the instant case for the reason that the said judgment was related to third party in possession of a property, claiming independent right as a tenant and not party to a decree for possession of immovable property, whereas in the instant case the objector is not claiming her independent right in the property, but she is stepping under the shoes of the judgment debtor and that too under a money decree. 11. Thus, the Executing Court rightly dismissed the objections under Order 21 Rule 58 and under Order 21 Rule 97 CPC. The findings arrived at by the Executing Court are just and proper, with which I fully concur. 12. I am of the considered view that there is no prima-facie material available on record, on the basis of which enquiry or adjudication is necessary under Order 21 Rule 58 CPC in respect of unregistered gift deed executed by son in favour of his mother even for collateral purpose, more so in view of the fact that in the gift deed dated 20.7.2009, there is no recital that the possession of the property was given to the objector. For this reason, the judgment passed by the Hon'ble Apex Court in the case of Bondar Singh and others (supra) is not applicable in the instant case. From the material on record, it is clear that the objection was filed by the objector with intent to delay the execution proceedings. 13. Other judgments relied upon by the learned Sr. For this reason, the judgment passed by the Hon'ble Apex Court in the case of Bondar Singh and others (supra) is not applicable in the instant case. From the material on record, it is clear that the objection was filed by the objector with intent to delay the execution proceedings. 13. Other judgments relied upon by the learned Sr. Counsel also do not apply in the facts and circumstances of the present case. 14. Taking into consideration the facts and circumstances of the case and more particularly in view of the fact that property had already been attached, auction took place and pursuant to the auction, part payment has been deposited and now the matter is pending before the Executing Court only for confirmation of sale and issuance of sale certificate, I find no merit in these appeals and the same being bereft of any merit, are liable to be dismissed, which stand dismissed accordingly. 15. Consequent upon the dismissal of the appeals, the stay applications filed therewith also do not survive and the same also stand dismissed accordingly.