CHALLANI GINNING Vs. KAMAL

JUDGEMENT

(1.) It is not lightly said that a litigant's difficulties commence after he obtains a decree. The suit filed in the year 2013 by the appellant herein, for specific performance was decreed directing refund of an amount of Rs.1,45,00,000.00 with 8% interest from the date of filing of suit; the prayer for specific performance having been declined. The refund was not made as directed, and the appellant filed an execution petition wherein the suit property was attached in the year 2017. The objections filed by the Judgment Debtor (JD) and his assignees subsequent to the attachment, obviously to frustrate the recovery, were declined.

(2.) The appellant was then faced with an objection filed by the mother of the judgment debtor claiming the property to be a joint family property in which she has 1/3rd share along with the judgment debtor and his brother. The respondent herein, the objector, claimed that she came to know of the suit and the execution proceedings only on 6/2/2025 when certain persons came to the property in pursuance to the execution proceedings. Despite the knowledge having been pinned to the year 2025, she asserted that she was always in possession of the property since her sons had moved to Bombay. The Execution Court and the First Appellate Court found the objection to be not maintainable. In second appeal, the High Court reversed the order passed under Order XXI, Rule 97 of the Civil Procedure Code, 1908 against which the present appeal is filed.

(3.) The facts leading to the execution proceedings have to be noticed briefly. The suit filed in the year 2013 was decreed on 24/7/2017, the judgment in which is produced as Annexure RJ-1, in the rejoinder filed by the appellant. The 1st defendant was the son of the respondent and the 2nd defendant, a Private Limited Company in which the 1st defendant and the present objector were Directors. The plaintiff, the appellant herein, sought for specific performance of the suit property based on an agreement of 2011 wherein part consideration of Rs.1,45,00,000.00 was paid by cheque to the account of the 2nd defendant, out of the total sale consideration of Rs.1,51,00,000.00. The 1st defendant took up a contention that there was no sale intended and the agreement was a security for the loan availed by the 2nd defendant company. It was also contended that the loan was arranged through the brother of the 1st defendant who was close to the partners of the appellant. It was found that the suit property was mortgaged to the IDBI bank, which mortgage was known to the plaintiff, recited in the sale agreement, which enables the plaintiff only to the right of subrogation especially when the loan for which the mortgage was created had not been repaid and the bank had not been made a party to the suit. The prayer for specific performance was declined but the recovery of the amounts paid was directed from JD-1, the son of the respondent herein. The amounts having not been paid, the decree holder filed an execution petition on 8/8/2017 in which an attachment order was passed on 21/9/2017 which was affixed in a conspicuous part of the suit property, which the objector claimed to have been in her possession for long.