KRISHAN KANAHYA Vs. VIJAY KUMAR

JUDGEMENT

(1.) This application has been filed under Section 24 of the Code of Civil Procedure for the transfer of Execution Case No. 166 of 1971, Radhey Sham v. M/s. Badri Dass Radhey Lal pending in the Court of Shri S. M. Aggarwal, Commercial Sub-Judge, Delhi to the Court of some other Subordinate Judge of coordinate jurisdiction. The petitioners are Shri Krishan Kanahya and Shri Vijay Kumar, minor sons of Shri Ramesh Chand, through their mother and next friend, Shrimati Shakuntala Devi. The respondents are (1) Shri Vijay Kumar, (2) Shri Balkishan, and (3) M/s. Badri Dass Radhey Lal to be served through Shri Ramesh Chand, father of the two minor petitioners, and proprietor of M/s. Badri Dass Radhey Lal.

(2.) It appears that Shri Radhey Sham, father of respondents 1 and 2, obtained a decree against respondent 3, and in execution thereof sought to attach certain properties as belonging to the judgment-debtor. The petitioners filed objections under Order 21 Rule 58 of the Code of Civil Procedure on the ground that the property sought to be attached by the decree-holder could not be attached as the said properties belonged to the objectors on the basis of a will, dated December 26, 1961, alleged to have been executed by their grand-father, Shri Radhey Lal (since deceased), in their favour.

(3.) It is stated in the petition that similar objections had been filed by the two petitioners in another case Madan Lal v. Badri Dass Radhey Lal, Execution Case No. 11 of 1970, in the court of Shri S. M. Aggarwal, Subordinate Judge (since transferred to the Court of Shri P. R. Thakur, Subordinate Judge) prior to the present posting of Shri S. M. Aggarwal as Commercial Sub Judge, Delhi, that the said objections were dismissed by Shri S. M. Aggarwal on October 26, 1973, holding that the will relied upon by the petitioners was not genuine and the petitioners were not, therefore, the owners of the properties in dispute, and that the petitioners filed a separate suit under Order 21 Rule 63 of the Code of Civil Procedure for setting aside the said order of Shri S. M. Aggarwal, dated October 26, 1973. The petitioners submitted in the petition that it would be completely futile for the petitioners to rely upon the same will before the same Subordinate Judge, Shri S. M. Aggarwal, in the proceedings now pending before him as he had already given his opinion with regard to the genuineness of the said will, and that his decision in the present execution case would unnecessarily drive the petitioners to another suit under Order 21 Rule 63 of the Code of Civil Procedure without giving them a fair opportunity to establish their case in the execution case under Order 21 Rule 59 of the Code of Civil Procedure itself. The petitioners stated that for that reason they filed an application in the Court of the District Judge, Delhi, under section 24 of the Code of Civil Procedure, praying for the transfer of the Execution Case No. 166 of 1971 from the Court of Shri S. M. Aggarwal to the Court of some other Subordinate Judge of co-ordinate jurisdiction, that the learned District Judge dismissed the said application on May 5, 1975, holding that the ground of transfer given in the application was not sufficient for directing the transfer prayed for, and that in the circumstances they have filed the present petition in this Court for the same relief.