CANARA BANK Vs. GURMUKH SINGH

JUDGEMENT

(1.) In order to appreciate the legal nuances of this case a brief history of the litigation would have to be embarked upon. A suit for the recovery of Rs. 1,83,142.97 was filed in 1986. As the Defendants did not appear, they were proceeded ex-parte and eventually on 17.5.1989 the suit was decreed, as prayed for in the plaint. The Decree was against the Defendants/Judgment Debtors Shri Gurmukh Singh, who had availed of the credit facilities, and Nischattar Kaur and Shri Amarjit Singh as the Guarantors. The Execution petition, dated 3.11.1993, was filed almost two months later on 29.1.1994. The facts set out by Shri Rajesh Kumar Gupta and Shri Krishan Kumar Gupta (Objectors) is that they purchased the property sought to be attached and sold in thee execution proceedings, vis., B-34, Jhilmil Indl. Area, G.T. Road, Shahdra, Delhi (the said property) fro Shri Bhupinder Kumar Jain in October 1988, after an `Agreement of Sale' had been executed between them on 30.9.1988. The said property was leased out to late Shry Dayal Singh, by the perpetual lease dated 9-12-1966, and was not charged to or encumbered in any manner in favour of the Bank. The only connection appears to be that late Shri Dayal Singh was the father of the Defendants and husband of Smt. Jaswant Kaur.

(2.) Significantly, the Plaintiff-Bank, after filing of the suit, slumbered in the matter and did not bother to investigate whether the Defendants were in actual possession of the said property. This is critical, since the decree was passed in 1989 i.e. after the Objectors had purchased the property from the said Shri Bhupinder Kumar Jain, who in turn had on 18.11.1985 purchased the property from Smt. Jaswant Kaur, widow of Late Shri Dayal Singh. It is relevant that even the suit for recovery had been filed after widow Smt. Jaswant Kaur had sold the property. The Objectors have further stated that the property was mutated in the name of Smt. Jaswant Kaur by DDA letter dated 8.10.1985, (i.e. prior to the filing of the suit) and the superstructure thereon was constructed by her. Although mutation, per se, does not confer title, this fact cannot be ignored since third party interests have crept in. The Objections itself averred that this mutation by the DDA was effected pursuant to Relinquishment Deeds being executed in favour of widow Smt. Jaswant Kaur by her children, who are arrayed as Judgement-Debtors in the present proceedings.

(3.) Arguments were heard on 23.7.1999, revolving substantially around the question whether these Objections should be heard and disposed of on the basis of the material presently before the Court or, as was argued by counsel for the Objectors, that these Objections could only be disposed off after the reception of evidence. It was contended that after the Amendments carried out to the Civil Procedure Code in 1976, Objections preferred under Rule 58 of Order XXI had to be tried as a suit, and could, therefore, be disposed of only after the Objectors had been given due opportunity to lead evidence in support of these Objections. The learned counsel for the Decree-Holder had contested the correctness of these submissions but fairly conceded to them in the face of the Objector's reliance on M/s. Southern Steelmet and Alloys Ltd. vs. B.M. Steel, Madras, AIR 1978 Mad. 270, Sidramappa Rachappa Chiniwar & Ors. vs. Shankaralingappa Veerappa Bilagi & Ors., AIR 1979 Karnataka 89 and Sargunam vs. Union of India & Ors., AIR 1986 Madras 301. In the case of M/s. Southern Steel and Alloys Ltd. (supra), the Division Bench of that court had observed as followes: