Murari Lal Sharma vs Mukesh Agarwal

Bela M. Trivedi, J.—The present petition filed under Sec. 115 of CPC is directed against the order Dt. 10.8.2007 passed by the Addl. District Judge No. 4, Jaipur City, Jaipur (hereinafter referred to as ''the Executing Court''), in Objection Application No. 47/06, whereby the Executing Court has allowed the said application and released the property in question belonging to the respondent No. 1-objector from the attachment made by the Court on 18.04.2006 in the Execution Petition No. 12/06 filed by the petitioner-plaintiff-judgment creditor. The short facts giving rise to the present petition are that the petitioner-plaintiff had filed the suit against the respondent Nos. 2 and 3-defendants seeking recovery of Rs. 2,10,000/- in the Court of District Judge, Jaipur City, Jaipur (hereinafter referred to as ''the trial Court'') on 08.09.2005. In the said suit an ex-parte decree came to be passed against the said respondents-defendants on 07.01.2006. The petitioner-judgment creditor thereafter filed an execution petition before the Executing Court on 04.04.2006 and also prayed for the attachment of the property in question. The Executing Court vide order Dt. 18.04.2006 attached the said property by passing the following order:--

The present respondent No. 1-the objector thereafter filed the application being No. 47/06 seeking removal of the said attachment stating inter alia that the property in question was purchased by him from the respondent No. 3 Smt. Preeti Sharma W/o. Shri Jagdeep Sharma by registered sale-deed Dt. 28.09.2005, for which he had already paid the sale consideration by cheque on 07.09.2005. The Executing Court allowed the said application of the respondent No. 1 and released the property from attachment vide the impugned order Dt. 10.08.2007.

It has been sought to be submitted by the learned counsel Mr. G.P. Sharma for the petitioner that the respondent Nos. 2 and 3 with a view to defeat the decree to be passed in the suit had sold out the said property to the respondent No. 1, which could not be said to be a bona fide transaction. He further submitted that as per the provisions contained in Order XXI Rule 58, the objection application of the respondent No. 1 was required to be decided by the Executing Court, as the suit permitting the parties to lead the evidence. He has relied upon the decision of the Apex Court in case of Barnes Investments Ltd. and Others Vs. Raj K. Gupta and Others, and the decision of this Court in case of Poona Devi (Smt.) and Others Vs. Prem Narain through LRs. and Others, in support of his submissions. Pressing into service Section 53 of the Transfer of Property Act, he submitted that any transfer of immovable property made with the intent to defeat the creditor of the transferor shall be voidable at the option of the creditor so defeated.

However, the learned counsel Mr. S.B. Gupta appearing for the respondent No. 1 submitted that the respondent No. 1 being the bona fide purchaser for value without notice, the Executing Court has rightly released the property from attachment. He has also submitted that the property in question was already purchased by him prior to the filing of the suit by making full payment to the respondent Nos. 2 and 3 by cheque and that the suit being for recovery of money and not in respect of the immoveable property, it could not be said that the transfer was made to defeat the decree that might be passed in the suit.

Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the Executing Court it appears that the property attached by the Executing Court vide order Dt. 18.04.2006 has been released from attachment by it on the ground that the respondent No. 1 was a bona fide purchaser for value without notice. As a matter of fact, the respondent No. 1 had already made the payment towards the sale consideration to the respondent Nos. 2 and 3 on 07.08.2005 by cheque, whereas the suit for recovery was filed by the petitioner against the respondent Nos. 2 and 3 on 08.09.2005. The sale deed was also got registered in favour of the respondent No. 1 on 28.09.2005. Under the circumstances, it could not be said that the said property was sold out by the respondent Nos. 2 and 3 to the respondent No. 1 to defeat the decree that may be passed in the suit.

Further, it is pertinent to note that for the attachment of the property under Order XXI Rule 54 of CPC, the judgment creditor is required to submit an application as per Rule 13 thereof specifically mentioning therein about the share or interest of the judgment debtor in the property to the best of the belief of the judgment creditor. As per Rule 54 of the said Order also, the attachment is made in respect of the immoveable property by an order prohibiting the judgment debtor from transferring or charging the property in any way. From the said provision, it is implied that the Executing Court has to satisfy itself before passing of the order of attachment that the judgment debtor had any share or interest in the property to be attached, otherwise the question of judgment debtor transferring or charging the property in any way as contemplated in Rule 54 would not arise. In the instant case, it appears that the Executing Court had passed the order of attachment on 18.04.2006 merely on the application filed by the petitioner-judgment creditor, without mentioning as to what share or interest the judgment debtor had in the property in question. Under the circumstances, the very order of attachment Dt. 18.04.2006 passed by the Executing Court was erroneous.

Though it is true that as per Order XXI Rule 58(2), all questions including the question relating to the right, title or interest in the property attached arising between the parties to a proceeding under the said Rule, are required to be determined by the Court dealing with the claim or objection and not by separate suit, it is not mandatory or incumbent on the part of the Executing Court to decide such questions by framing the issues or by permitting the parties to lead the evidence, as sought to be submitted by the learned counsel Mr. G.P. Sharma. It is the discretion of the Court whether to permit the parties to lead the evidence. If from the documentary evidence, the fact situation becomes crystal clear, then the Court is not required to record formal or oral evidence while determining the objection under Order XXI Rule 58. What is contemplated in the said provision is that the questions relating to the right, title or interest in the property attached arising between the parties should be decided by the Executing Court in the same proceedings and not by way of separate suit. In appropriate cases, the Executing Court may permit the parties to lead oral evidence, for determining the rights of the parties to the proceedings.

In the instant case, the Executing Court has rightly decided the claim of the respondent No. 1 in respect of the property attached on the basis of the documents submitted by him, which order being just and proper does not call for any interference. The decisions relied upon by the learned counsel Mr. G.P. Sharma for the petitioner have no application to the facts of the present case. In none of the decisions it has been laid down that it is incumbent on the part of the Executing Court to frame the issues and permit the parties to lead oral evidence, and try the application like a suit as sought to be submitted by the learned counsel Mr. Sharma. In that view of the matter, the petition being devoid of merits deserves to be dismissed and is accordingly dismissed.