Smt. Laxmi Sarda vs Khushal Chand Khimji and Company and Others

A.K. Shrivastava, J.

A Summary Suit No. 11879/98 was filed by M/s. Khushal Chand Khimji & Company who has been arrayed as respondent No. 1 in this appeal, before the High Court of Judicature at Bombay. The said suit was filed under Order XXXVII Rule 2, CPC against M/s Laxmi Narayan Radha Vallabh and Company, a partnership firm and others. An ex parte decree was passed by Bombay High Court on 5-6-2000 against the defendants. In order to realize the decretal amount, execution application was submitted before the High Court of Bombay, however, the decree was transferred to District Judge, Hoshangabad alongwith a certificate under Rule 6 of Order XXI, CPC, by Bombay High Court by exercising powers u/s 39 and Order XXI Rule 5, CPC. Since the judgment-debtor actually resides at Pipariya, the District Judge, Hoshangabad transferred the said decree to Additional District Judge, Sohagpur having pecuniary jurisdiction to execute the decree.

In the said summary suit, one Ram Gopal Kabra was one of the defendants. The present appellant is daughter of said Ram Gopal Kabra. The appellant filed objections against the attachment of the alleged HUF property under Order XXI Rule 58, CPC. The objections of the appellant are that Ram Gopal had already died and without impleading the legal representatives of said Ramgopal Kabra, the suit was decided and decreed in ex parte and therefore, it amounts to nullity, since the decree has been passed against a dead person. Her another objection is that Ram Gopal Kabra was one of the partner of partnership firm M/s Laxmi Narayan Radha Vallabh & Co., who is the judgment debtor and if any money decree has been passed against the firm, it cannot be executed by attaching the property of HUF, therefore, the property be released from attachment.

Shri U.K. Shukla, learned Counsel for the decree holder/ respondent No. 1 submits that reply against objections of appellant/objector under Order XXI Rule 54, CPC was filed by the decree holder refuting the averments and it was submitted that the decree has been rightly passed and the same is rightly being executed by attaching the immovable property of the judgment debtor.

On going through the record of the Executing Court, it is revealed that without holding any enquiry and without providing any opportunity to adduce evidence to the appellant/objector, her objections have been rejected by the impugned order by the Executing Court. Hence, this appeal has been filed by the appellant/objector.

The contention of Shri S.A. Dharmadhikari, learned Counsel for the appellant is that if the objections are filed under Order XXI Rule 58 of CPC hammering the validity of attachment of immovable property by the objector, they are required to be adjudicated in terms of Rule 58 of Order XXI of CPC but without providing any opportunity to adduce evidence to the appellant/objector in order to establish that immovable property is not liable to be attached in execution to the decree passed against judgment debtor, summarily the objections could not have been rejected.

Hence, it has been submitted by learned Counsel that by setting aside the impugned order, learned Executing Court be directed to decide the objections under Order XXI Rule 58, CPC filed by the appellant/objector on merit after recording the evidence.

Per contra, Shri U.K. Shukla, learned Counsel for the decree holder argued in support of the impugned judgment.

Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.

On going through the objections filed by the objector, challenging the attachment of the immovable property, it is gathered that the same are filed under Order XXI Rule 58, CPC and if that is the position, those objections are required to be adjudicated in terms and procedure provided under Rule 58 Order XXI, CPC. On going through Rule 58, it is revealed that it speaks adjudication of claims or objections to attachment of property. Sub-rule (1) of Rule 58 speaks about that if 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 said property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions contained in this rule. Sub-rule (2) of Rule 58 speaks that all the questions including questions relating to right, title or interest in the property attached arising between the parties to a proceeding, or their representatives under the said 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 ''separate suit''.

On going through Rule 58 of Order XXI, it is revealed that the word ''adjudicate'' has been mentioned which would mean an enquiry or recording of evidence. In Corpus Juris Secundum Vol. II Page 49, the meaning of the word ''adjudicate'' has been explained. It will be apposite to quote that paragraph which reads as under:

To adjudicate in its strictest sense; to determine finally; to settle in the exercise of Judicial Authority to determine in the exercise of judicial power; to solemnly or deliberately determine by judicial power upon a hearing of the rights and interests of the parties involved on the issues, and the evidence to be taken and submitted according to some prescribed method, or in the absence thereof, the usual method of procedure known to the statutes or the common law, and after a hearing in respect of the matters in issue to decide and decree what are the respective rights of the parties as they may appear from the law and evidence adduced.

(Emphasis supplied)

Thus, the term ''adjudicate'', which has been mentioned in Rule 58 of Order XXI cannot be construed in a narrow sense but the said word is having a wider connotation, which includes recording the evidence as well.

Single Bench of this Court in Ram Gopal v. Ram Narain 1959 JLJ 621, has categorically held that where a property is attached at the instance of the decree-holder and the legal representatives of the deceased/ judgment-debtor objects to the attachment on the ground that the property is his, it is for the decree-holder to establish at least prima facie that the property belonged to the deceased/judgment-debtor.

In a case where the judgment-debtor is dead, the decree-holder can proceed against only such assets as may be found to be in the hands of legal representative of the deceased/judgment-debtor. It is the duty of the decree-holder to prove at least prima facie, that the particular property that he seeks to be attached and sold belonged to the judgment-debtor. It would be profitable to quote that portion of Para 4 of the said decision, which reads thus:

It is the duty of the decree-holder to prove in the first instance that the property belonged to the Saligram. Merely because the appellants are sons of Saligram it cannot be presumed that the house originally belonged to Saligram. Thus in my opinion the Executing Court, which tried the objection of the appellants was clearly in error, in wrongly placing the onus on them. I am satisfied that both the Courts below have not decided the case with a correct approach and both the judgments should therefore, be set aside.

In the present case also, since seriously it has been objected by the appellant/objector, who is also the daughter of judgment-debtor Ram Gopal, who is dead, that the property is not of the judgment-debtor.

In another decision of this Court in Ashok Kumar v. Bachhulal 1961 JLJ SN 449, it has been held that under Order XXI Rule 58, CPC, if a decree is against father and the property is of joint family of father and sons attached by decree-holder, sons are entitled to object to attachment on the ground that decreetal debt incurred for immoral purpose and if the immoral purpose is proved by the sons, their share must be released from attachment.

In the present case, objections of the appellant/objector filed under Order XXI Rule 58, CPC have been disposed of without affording any opportunity to lead evidence to her and therefore, I am of the view that the procedure so adopted by learned Executing Court is wholly unwarranted under the law.

On this point, I may place reliance on two Single Bench decisions of this Court they are Ram Krishnadas v. Ramjidas and Anr. 1978 (I) MPWN 182 and Jagdish Chandra v. Gokuldas Purshottamdas 1997 (I) MPWN 131.

In the present case, the Executing Court without affording opportunity to lead evidence to the appellant/objector has rejected her application under Order XXI Rule 58, CPC. I am of the view that the modus operandi, which has been adopted by the Executing Court rejecting the objections is divorcing and deviating from the terminology ''to adjudicate the claim''. Indeed, the Executing Court was obliged to provide opportunity to the appellant/objector to demonstrate by leading evidence that the property which has been attached is not of the deceased judgment-debtor Ram Gopal and, therefore, the same is not liable to be attached and it was incumbent upon the Executing Court to record the evidence before passing any order on the objections filed by the objector.

Resultantly, this appeal succeeds and is hereby allowed to the extent indicated hereinabove. The impugned order passed by the Executing Court is hereby set aside and the case is remanded to the Executing Court to redecide the objections filed by the appellant/objector after providing opportunity to the parties to lead evidence. The parties are hereby directed to appear before the Executing Court on 17-11-08. The Registry is hereby directed to send the record post-haste so as to reach it before 17-11-08. Looking to the facts and circumstances, parties are liable to bear their own costs.