PRAVEEN KUMAR WADHWA Vs. ENDURE CAPITAL (P) LTD

JUDGEMENT

(1.) Arguments have been heard on admission. Counsel for the appellant has submitted that the findings in the impugned judgment decreeing the suit of the plaintiff/respondent under Order 12 Rule 6 of the Code of Civil Procedure (hereinafter referred to as the 'Code') is a perversity in as much as the impugned judgment has failed to appreciate that the question about the ownership of the suit property i.e. property bearing no. A-190, Inder Puri, New Delhi-12 was yet to be adjudicated upon.

(2.) It is pointed out that an execution petition had been preferred by the decree holder, Mr. S.C. Mehta, wherein he had sought attachment of the suit property; the judgment debtor was Mr. P.K. Wadhwa (the present appellant) and the Objector before the Executing Court was the respondent i.e. M/s. Endure Capital RSA No.137/2004 Private Limited. Pursuant to the orders of the High Court an issue in this regard had been framed by the Executing Court. This is evident from the order dated 19.02.2003. It is pointed out that in terms thereof evidence is being led and the matter is yet pending; the question about the ownership of the respondent/Objector therein i.e. M/s. Endure Capital Private Ltd. is yet to be decided. In this view of the matter, a triable issue had arisen and a decree under Order 12 Rule 6 of the Code could not have been passed. For this proposition, reliance has been placed upon various judgments of High Court titled as Sh. Mohan Prasad Jha Vs. Sh. Shambu Prasad Singh, 1999 82 DLT 281 titled as R.S. Bakshi & Anr. Vs. H.K. Malhari & Anr., 1999 50 DRJ 643 as also another judgment of this court titled as Smt. Radha Lal Vs. M/s. Jessop & Company., 1992 AIR(Del) 331 It is pointed out that facts which require investigation and proof cannot be the subject matter of a decree under Order 12 Rule 6 of the Code; this provision cannot be resorted to cut short the litigation.

(3.) Arguments have been countered by the learned counsel for the respondent. It is pointed out that no doubt an execution petition had been filed by the decree holder i.e. Sh. S.C. Mehta against the judgment debtor P.K. Wadhwa (appellant) seeking attachment of the suit property (bearing no. A-190, Inder Puri, New Delhi-12) as certain amounts were payable to the decree holder. Respondent/Objector M/s. Endure Capital Private Ltd., had filed objections claiming that the suit property cannot be attached as he is the owner thereof. It was pursuant thereto that an issue had been framed about the ownership of the suit property. It is pointed out that those proceedings cannot come in the way of the clear and RSA No.137/2004 unequivocal admission made by the appellant (defendant before the Trial Court) wherein he had admitted that a lease had been executed between the parties; the legal notice terminating his tenancy had also not been disputed. The tenancy having thus expired by operation of law, the defendant was rightfully ordered to be ejected.