Union Bank of India (UOI) vs Firm Gupta Glass Co. and Others

G.C. Garg, J.—This order will dispose of Civil Revision Nos. 2389 and 2399 of 1992 filed at the instance of the Union Bank of India, petitioner against Firm Gupta Glass Company and others, the question involved therein being common.

Petitioner-bank filed a suit against M/s Gupta Glass Company and its partners, namely, Charan Dass, Bhag Mal and Ved Parkash for the recovery of Rs. 5,17,511/- due from them as on August 3,1981, by sale of the mortgaged properties and in case the sale proceeds fell short to meet the decretal amount, by sale of latters'' other properties. The defendants besides raising other defences raised an objection that the documents executed by them in favour of the petitioner-bank had not been validly executed and, therefore, the suit was bad on that account. On the pleadings of the parties, a specific issue besides others, was framed, viz. "Issue No. 4-Whether the defendant created a equitable mortgage of the property in favour of the plaintiff-bank by way of security as alleged? OPP". The trial Court by judgment and decree dated September 25,1984, decreed the suit. It was held under Issue No. 4 that the documents were executed by the defendants and they had created mortgages of the properties in favour of the petitioner-bank, by way of securities. A preliminary decree was consequently passed for the recovery of Rs. 5,17,511/- with costs and interest at the agreed rate from the date of the suit till its realisation, in favour of the petitioner-bank and against the defendants. It was also held that in the eventuality of the defendants failing to pay the said amount within one month, the petitioner-bank may apply for a final decree for the recovery of the amount by sale of hypothecated/mortgaged/pledged goods and if still the amount is not recovered by such sale, the amount be recovered from the defendants in their individual capacity. There is no dispute that this decree became final and a final decree was passed in favour of the petitioner-bank on June 10,1986, the defendants having filled to pay the amount within one month of the passing of the preliminary decree.

On January 15, 1987, the petitioner-bank took out execution. The judgment-debtors filed objections to the execution of the decree. The objections were almost in identical terms as were raised in the written statement filed in the suit. It was, inter alia, contended that only simple interest could be awarded. Creation of equitable mortgage of the properties in favour of the petitioner-bank was denied. In other words, it was alleged that equitable mortgage of the properties detailed in the suit had never been created on October 24, 1976. Objection petition was tried, and dismissed by the executing Court by order dated November 28,1987 by inter alia observing as under :-

"All the facts were gone into by the trial court while passing the preliminary decree and final decree in the case and no defect can be found in the filing of the execution application by the concerned branch of the applicant-Bank on that score. From para 24 of the judgment available on the main case, it is clearly evident that the defendants also mortgaged their property with the decree-holder. The documents regarding the property which was mortgaged have also been filed in the main case. The applicant is entitled to proceed against the entire mortgaged property as also hypothecated/pledged goods and the objection of the Judgment-debtor that no property was mortgaged with the applicant-Bank is without any substance when from para 24 of the judgment, it is clean that the judgment-debtors had also mortgaged their property."

The judgment-debtors again while filing reply to the application under Order 21 Rule 66 of the Code of Civil Procedure, submitted that the decree was not executable. Objections, as earlier raised, about rate of interest and mortgage of property, were again raised. These objections were also dismissed by order dated April 20, 1991 and the property was ordered to be sold by passing the following order :-

"Case has been called several times but no body is present on behalf of the judgment debtors. Hence, the objection petition filed by the judgment debtors stands hereby dismissed. The property is ordered to be sold as under:

Court affixation : 27.4.1991 Spot : 6.5.1991 Sale : 24.5.1991 Report : 30.5.1991

Process fee be filed and warrant of sale be issued. To come up for office report on 30.5.1991."

Still dissatisfied, the judgment-debtors again filed an objection petition under Sections 34, 47 read with Section 151 and Order 21 Rule 58 of the Code. It was now contended for the first time that the judgment debtors have no right, title or interest in the attached properties situated in Bazar Katra Sher Singh, Amritsar as the same had fallen to the share of Raj Rani wife of Charan Dass, Tripta Rani wife of Bhag Mai and Chand Rani wife of Ved Parkash whereas property Nos. 2112 and 2113/12 situated at Bazar Chowk Peela Hospital, Amritsar belonged to Amardeep Kaur w/o Bhupinder Singh, Pritam Kaur wife of Hardev Singh and Bhupinder Singh son of Hardev Singh who had purchased the said property by means of a registered sale deed for consideration. The judgment debtors again raised a specific plea that they had never validly created equitable mortgage of property Nos. 2112/2113/12 situated at Bazar Chowk Peela Hospital, Amritsar and the property situated at Bazar Katra Sher Singh, Amritsar and, therefore, the same were not liable to be attached in execution of the decree passed in favour of the petitioner-bank. The grant of future interest in the final decree was also objected to on the ground of it being void, without jurisdiction and in contravention of the provisions of Section 34 of the Code. The allegations made were denied by the judgment-debtors by filing a reply.

Raj Rani, Tripta Rani and Chand Rani, who are none else but the wives of the three judgment-debtors also filed an objection petition under Order 21 Rule 58 of the Code, on February 25, 1992. In this objection petition, they submitted that property Nos. 2089/12 to 2191/12 (old) and 1501/XII - 11 to 15 (New) situated in Bazar Katra Sher Singh, Amritsar are not owned and possessed by the judgment-debtors as the objectors have got l/3rd share each in these properties in lieu of their right of maintenance from their husbands, judgment-debtors by way of family settlement and a deed of settlement in that behalf was executed on January. 22,1971. They also pleaded that they had acquired title in the said properties in lieu of their right of maintenance and they are in possession thereof since January, 1970, the date of settlement. These objectors further pleaded that the judgment-debtors never created equitable mortgage in favour of the decree- holder, Union Bank of India. It was in these premises submitted that the decree-holder had no right to seek attachment and sale of the said properties.

The decree-holder, petitioner herein filed a detailed reply to the objection petition filed by the wives of the judgment-debtors, inter alia, contending that the facts alleged by the objectors about family settlement were never disclosed at any stage and thus, they were estopped to raise such objections and, in any case, the alleged deed of family settlement was a forged document. It was submitted that the objections had been filed to delay proceedings in .the execution application. It was pointed out that the objections raised by the objectors that no equitable mortgage had been created, had already been raised by the judgment- debtors and negatived both in the main suit and execution application as well. The claim of the objectors, wives of the judgment-debtors based on family settlement was denied by alleging that it was a sham transaction created by the objectors in order to defeat the right of the petitioner-bank. All other allegations made in the objection petition were specifically denied.

Learned executing Court in the objection petition filed by the judgment-debtors, framed as many as six issues including the one, "Issue No. 2 - Whether the judgment-debtors have never validly created equitable mortgage of property No. 2112 and 2113/12 situated in Bazar Chowk Peela Hospital, Amritsar ? OPD" and fixed the case for evidence of the judgment-debtors, objectors. On an application for stay of the sale proceedings initiated in the execution application, the executing Court stayed the sale of the attached property and called back the proclamation of sale already issued as unexecuted.

Almost a similar order was passed on the objection petition filed by the wives of the judgment-debtors by observing that a photostate copy of memorandum of family settlement dated January 22,1971 has been placed on record and the decree-holder having questioned the family settlement being sham and fabricated document, the genuineness of which can be determined only after the evidence is led, framed as many as four issues and fixed the case for evidence of the objectors. On an application for stay, proceedings in the execution application for sale of the attached property were stayed. Aggrieved by the orders passed by the executing Court on February 27,1992, the decree-holder has filed two revisions. Civil Revision No. 2389 of 1992 is directed against the order passed on the objection petition filed by the wives of the judgment-debtors whereas Civil Revision No. 2399 is directed against the order passed in the objection petition filed by the judgment debtors.

Since both these revisions have sprung out of a single execution application and almost similar contentions have been raised, these are being disposed of by a single order.

Learned counsel for the petitioner has contended that all the objections raised by the judgment-debtors before the executing Court had either been determined in the main suit itself or in the objection petition filed by them earlier and, therefore, the objection petition now filed by the judgment-debtors is not at all maintainable on any principle of law whatsoever. There is merit in the contention of the learned counsel for the petitioner. In the suit, a specific issue had been framed to the effect that, "whether the defendants created an equitable mortgage of the property in favour of the plaintiff-bank by way of security." This issue was answered in favour of the plaintiff-bank. Similar objection raised in execution proceedings was negatived by the executing Court by order dated November 28,1987. Still on another occasion, a similar objection petition raising similar objections in proceedings under Order 21 Rule 66 of the Code was tried for a sufficiently long time and was dismissed by order dated April 20, 1991. No appeal or revision was filed against the said order. It is thus, apparent that the earlier orders passed by the executing Court became final wherein it had been consistently held that the property had been mortgaged with the plaintiff-bank in order to secure repayment of the loan amount. The executing Court without reading the reply of the decree-holder to the objection petition and without comprehending the facts of the case has dealt the matter in an extremely casual manner. It has not even cared to notice that the issue, whether the judgment-debtors had validly created an equitable mortgage in favour of the decree-holder had already been adjudicated upon between the parties. A matter which has already been adjudicated upon between the parties, cannot be raised in execution proceedings and notwithstanding the above position, it is not understood, why the executing Court still proceeded to frame issues on the objections which had already been set at rest and attained finality. It is most unfortunate that the respective contentions of the parties raised in the objection petition and the reply thereto, had not percolated down to the executing Court, the same having not been noticed in the impugned order. This apart, the properties were mortgaged in the year 1976 and the final decree was passed in the year 1986. The judgment-debtors had raised objections earlier on at least two occasions but they on none of these occasions or at any stage disclosed that some share in the properties has gone to their wives by virtue of a family settlement which is stated to have taken place in the year 1970. This fact has been introduced for the first time in the year 1992 and the document, the photostat copy of which has been placed on the record of the executing Court, saw light of the day for the first time in the year 1992. This document is not shown to have been incorporated in any record of the Municipal Corporation or elsewhere. It is a typed writing on a simple piece of paper signed by the judgment debtors, their wives and two witnesses. None of the parties has put date under his or her signatures. Only in the body of the said document it is shown to have been executed on January 22,1971. Such a document, in my view, can be created by any one at any time, especially in the circumstances noticed above. What prevented the judgment-debtors to bring this fact to the notice of the Court in the year 1981 itself when the suit was filed is still a mystery.

Had the properties fallen to the shares of the wives of the judgment-debtors in lieu of maintenance, the latters would have brought this fact to the notice of the Court immediately and in any case, could not have secured loans by creating equitable mortgage in the year 1976.

No grouse can be made by the way of objection petition in the execution proceedings against the grant of interest at the agreed rate. The decree which is sought to be executed specifically granted interest in favour of the decree-holder and against the judgment-debtors at the rate agreed between the parties, from the date of the suit till realisation. No appeal or revision having been filed either against the preliminary decree or final decree, the decrees attained finality. It is too late in the day for the judgment-debtors to now object to the grant of interest at the agreed rate, in the execution proceedings of the decree.

Thus, to me it seems that the objection petition of the judgment debtors is totally frivolous and has been filed only to delay the execution of a money decree which was passed way back in September 1984 and became final for non-compliance, in June, 1986. In the above premises, in my view, no triable issue arises in the objection petition filed by the judgment debtors and the executing Court, as already observed, has acted illegally and with material irregularity and also exceeded its jurisdiction in putting the pleas of the parties to trial by framing as many as six issues. Order 21 Rule 58 of the Code specifically provides that no claim or objection shall be entertained where the Court considers that the claim or objection was designedly or unnecessarily delayed. In the present case all possible objections raised by the judgment-debtors had been decided either in the suit or in execution proceedings and as a matter of fact, nothing remained to be adjudicated upon. The executing Court could not travel beyond the decree. All that has been ordered by the executing Court appears to have been done intentionally with an intent to delay execution of the decree and with an ulterior motive.

Similar is the position of the objection petition filed by the wives of the judgment-debtors. There is no allegation in the objection petition that the alleged family settlement had been acted upon and incorporated in any record of the government. The objectors, wives of the judgment-debtors claim \\ 1/3rd share each in the properties in lieu of maintenance. It has not been shown that these objectors are not living with their husbands. They have not raised even a little finger during the last 20 years to have their shares in the properties. Loan was raised from the bank in the year 1976 and it cannot be said that they had no knowledge of the same. The objection petition of the judgment-debtors has already been held to be totally frivolous. This is nothing but an attempt on the part of the judgment-debtors to forestall the sale of the properties which was sought to be effected in execution of a valid decree passed as back as in the year 1984. Such a device adopted by the judgment-debtors themselves and their wives cannot but be said to be an attempt to over reach the Court. Even if the objectors are found to be in possession of the properties, it in no way help them as they are living with their husbands. Present is an objection petition which was filed in the year 1992. Execution was taken out in 1987 itself. The objection petition has thus been filed after long delay. Such an objection petition deserves to be dismissed summarily being unnecessary delayed in exercise of the power under clause (b) of Sub-rule 1 of Rule 58 of Order 21, The claim made cannot in the circumstances be said as bona-fide and made at the earliest opportunity. Therefore, the objection petition filed by the wives of the judgment-debtors is held to be totally baseless and frivolous, the claim made therein being designedly unnecessary delayed. Consequently, the order passed thereon by the executing Court deserves to be quashed.

For the reasons recorded above, these revision petitions succeed and are allowed. The orders under revision are set aside. The executing Court shall now proceed with the matter in accordance with law and dispose of the execution application filed by the petitioner-bank, as expeditiously as possible. The petitioner-bank shall be entitled to have costs which are assessed collectively at Rs. 2000/-