S C MEHTA Vs. P K WADHWA

JUDGEMENT

(1.) This application under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code" only) has been moved by the Objector M/s Endure Capital Private Limited for review of the orders dated 7th January, 2003 passed by this Court. The application is opposed by the Decree Holder.

(2.) The facts relevant for the disposal of this application, briefly stated, are that the Decree Holder, in execution of a money decree against the Judgement Debtor, has obtained attachment of the second floor of property No.A-190, Inder Puri, New Delhi. The objector filed an application under Order 21 Rule 58 read with Section 151 of the Code pleading that it is the owner of the said property by virtue of a Sale Deed dated 7.9.1995 and as such, the said flat is not liable to be attached in execution of the decree against the Judgement Debtor. According to the objector, the Judgement Debtor is merely a lessee of the said flat and has no right, title or interest therein. However, according to the Decree Holder, the Sale Deed in favour of the objector is a sham and bogus document and in fact, the Judgement Debtor is the real owner of the said property. The Decree Holder relied upon a deed of understanding between the Judgement Debtor and the objector in terms of which the Judgement Debtor had obtained a loan from the objector for the purchase of the said flat and only with a view to secure and safeguard the repayment of loan this Sale Deed was got executed in the name of the objector. The Decree Holder has pointed out that in the said Deed of Understanding, it was clearly stipulated between the Judgement Debtor and the objector that for obtaining a loan of Rs.4 lacs from the objector, the Judgement Debtor was agreeing that the Sale Deed of the flat be executed in favour of the objector as a security. A photocopy of the Deed of Understanding has been placed on record. By orders dated 7.1.2003 which are sought to be reviewed, this Court held that since the Deed of Understanding was being disputed by the objector and various questions of facts and law had been raised, which cannot be adjudicated without giving parties opportunity to lead evidence, the issues are to be framed on the objection petition filed by the objector and the question of attachment of the flat in question is to be decided after recording evidence. Learned counsel for the applicant seeks review of the order dated 7th January, 2003 on the ground that the application filed by the objector for withdrawing attachment does not require any evidence as the plea raised by Decree Holder is barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as "the Act" only) which prohibits an action to recover any property held benami. Learned counsel for the Decree Holder has opposed this application firstly on the ground that the application for review is not maintainable and secondly on the ground that the plea raised by the Decree Holder is not hit by Section 4 of the Act. He argues that the Decree Holder is not claiming to be the real owner of the suit property nor he is raising any defence in respect of any property held benami but his plea is that the Sale Deed in favour of the objector is a sham and bogus document and the Judgement Debtor is the real owner of the flat in question.

(3.) I have heard learned counsel for the applicant/objector and learned counsel for the Decree Holder as well as Judgement Debtor. I have gone through the records. Before adverting to the merits of the application, it would be fruitful to refer to Section 4 of the Benami Transactions (Prohibition) Act, 1988 which reads as under :-