Budhi Ram Justa S/O Late Shri Pannu Ram v. R. K. Soni, S/o late Sh. Lachhman Das
2021-09-24
SATYEN VAIDYA
body2021
DigiLaw.ai
ORDER : 1. By way of instant petition, petitioner has assailed the orders dated 26.12.2019 and 05.04.2021, Annexure P-3 and P-5 passed by the executing Court i.e. learned Civil Judge, Court No.7, Shimla in Execution Petition No. 33-X/2018. 2. The grievance of petitioner against the order dated 26.12.2019, Annexure P-3 is that under the garb of said order, the pension account of the petitioner has been attached. In so far as the order dated 05.04.2021 is concerned, his grievance is that on one hand, his pension account has been attached and on the other, his immovable properties have been ordered to be attached by the executing Court. Petitioner has further alleged that he has not been offered reasonable and sufficient opportunity to file objection to the execution petition. 3. Respondent has contested the claim of the petitioner by filing reply. It has been stated that the petitioner has suppressed material facts and is estopped from invoking the supervisory jurisdiction of this Court. As per respondent, the executing Court has not committed any illegality or irregularity. 4. Respondent has further contended that petitioner had opted to be proceeded against ex-parte in the civil suit filed against him by the respondent for recovery of Rs.65,874/- as arrears of rent. The decree in civil suit No. 39-1/2018/16 was passed in favour of the respondent with pendentelite and future interest. Since some part of the claim of the respondent was rejected, he had to file the appeal, which was allowed. 5. Respondent claims to have filed execution petition after the petitioner failed to obey the decree, which has attained finality. According to respondent, the petitioner was afforded sufficient opportunity even by the executing Court, but he failed to file any objections and as such he has no right to file the present petition, which according to the respondent is nothing but abuse of process of law. 6. I have heard learned counsel for the parties and have also gone through the record. 7. The decree, pending for execution before learned executing court, reads as under: - “This Civil Suit coming on this 16th day of July, 2018, for final disposal before me, Vatsala Chaudhary, Civil Judge, Court No. (7), Shimla, H.P. in the presence of Shri Abhishek Sood, Advocate ld. Counsel for the plaintiff and defendant already exparte.
7. The decree, pending for execution before learned executing court, reads as under: - “This Civil Suit coming on this 16th day of July, 2018, for final disposal before me, Vatsala Chaudhary, Civil Judge, Court No. (7), Shimla, H.P. in the presence of Shri Abhishek Sood, Advocate ld. Counsel for the plaintiff and defendant already exparte. It is, ordered that the suit of the plaintiff is decreed, whereby plaintiff is held entitled to the recovery of Rs.65,874/- along with pendente lite and future interest @ 12% per annum from the date of suit till actual realization. No order as to cost.” 8. It is not in dispute that the above said decree was assailed before learned District Judge, Shimla in appeal by the plaintiff/ respondent herein by way of Civil Appeal No. 34-S/13/2018 and vide decree dated 15.3.2019 plaintiff/ respondent was further held entitled to use and occupation charges to the tune of Rs.58,674/- and costs of Rs.1,000/-. 9. The above noted decree having remained unsatisfied, respondent approached the executing Court for execution thereof. Petitioner appeared in response to the notice issued by the executing Court on 09.05.2019 and sought time for filing objections. The matter was adjourned thereafter to 13.06.2019, 05.07.2019 and 08.08.2019. On all these dates, time was sought on behalf of the petitioner herein to file objections and was accordingly granted. On 17.10.2019 no prayer for filing objections was made and accordingly the executing Court closed the opportunity to file objections. 10. Order 21 rule 17 of the Code of Civil Procedure (for short, “Code”) provides for procedure to be adopted on receipt of applications for execution of the decree. Rule 22 of Order 21 provides for issuance of notice to the person against whom the execution is applied requiring him to show cause, on a date to be fixed as to why the decree should not be executed against him. Under Rule 23 of Order 21 of the Code, the judgment debtor can offer objections to the execution of decree, whereupon, the executing Court is mandated to consider objections so preferred and to pass such orders as it thinks fit. The aforesaid provisions reveal that it is for the judgment debtor to avail opportunity of filing the objections, if any, on the date when he appears to answer the show cause issued to him under Rule 22 supra.
The aforesaid provisions reveal that it is for the judgment debtor to avail opportunity of filing the objections, if any, on the date when he appears to answer the show cause issued to him under Rule 22 supra. In the present case, despite seeking adjournment on the pretext of filing objections, petitioner had failed to prefer any objection whatsoever. 11. Thus, the grievance of petitioner that he was not afforded sufficient opportunity to file objections is against the records and also without merit. 12. Perusal of order dated 26.12.2019 does not suggest that the executing Court had issued any direction to attach the pension of petitioner. The order read as under: “26.12.2019: List of property of JD and calculation of amount due filed today by the learned counsel for DH. Let warrant of recovery by attachment of property of JD be issued as per list of property of JD for 25.04.2020.” The record further reveal that the learned executing Court had issued directions to the Manager, State Bank of India (erstwhile State Bank of Patiala), H.P. Secretariat, Chhota Shimla-2 to attach a sum of Rs.1,54,763/- from the saving account of the petitioner bearing No. 55069443026. This communication also does not reveal or imply that the directions were issued to attach the pension of petitioner. 13. Petitioner did not take any exception to order dated 26.12.2019 before learned executing Court. Without raising such issue before the executing Court, the petitioner cannot invoke the supervisory jurisdiction of this Court for assailing the order passed by the executing Court as far back on 26.12.2019. 14. Order dated 26.12.2019 has been passed by learned executing court in exercise the jurisdiction vested in it in accordance with law. Petitioner has failed to point out any illegality or perversity in the said order, hence no interference is called for 15. The attempt of the petitioner, by filing the present petition, appears just to delay the execution of the decree against him. The action of the petitioner definitely is not bonafide. The challenge to an order passed on 26.12.2019 by way of instant petition in the year 2021 speaks for itself. 16. As regards the challenge to order dated 05.04.2021, again no infirmity or illegality has been shown to have been committed by the executing Court.
The action of the petitioner definitely is not bonafide. The challenge to an order passed on 26.12.2019 by way of instant petition in the year 2021 speaks for itself. 16. As regards the challenge to order dated 05.04.2021, again no infirmity or illegality has been shown to have been committed by the executing Court. Law confers jurisdiction on the executing Court to satisfy the money decree, passed by it, by attachment and sale of the movable and immovable property of the judgment debtor. Law also provides remedy to the judgment debtor against the attachments made in pursuance to the orders of executing Court. Petitioner, instead of availing any such remedy has straightaway approached this Court without any legal foundation for the same. 17. In view of the above discussion, there is no merit in the instant petition and the same is accordingly dismissed with costs of Rs.5,000/-. Pending application(s), if any, also stand dismissed.