SMT. RAKSHA DEVI Vs. SMT. UMA AND OTHERS

JUDGEMENT

(1.) This petition under Art. 227 of the Constitution of India is directed against the order dated 07.01.2013 passed by the learned Civil Judge (Senior Division), Court No. 1, Shimla, whereby the objections filed by the petitioner under Sec. 47 of the Code of Civil Procedure came to be dismissed.

(2.) It is not in dispute that the suit filed by the decree holders was dismissed by the learned trial Court, however, the said judgment and decree was reversed by the learned first appellate Court and the operative portion of the judgment reads thus:-

(3.) The respondents on the basis of the judgment and decree passed by the learned first appellate Court filed execution petition under Order 21, Rule 32 of the Civil Procedure Code for execution of decree of specific performance. On receiving notice from the learned executing Court, the petitioner filed objections under Sec. 47 of the Code of Civil Procedure on the ground that the decree in question is unexecutable against the petitioner as she is not in possession of the flat in question. It was also averred that husband of the petitioner had procured loan to run his company known as 'M/s N.R. and Company' and mortgaged the entire building with Banker i.e. UCO Bank. The husband of the petitioner could not liquidate the loan amount, therefore, the Banker took possession of the building under Sarfesi Act and auctioned the same to one Shri Naresh Chauhan for an amount of Rs. 24.50 lacs. The petitioner was intimated by the Banker through letter dated 14.02.2008 informing that the premises in question had been auctioned in a private bid to Shri Naresh Chauhan for total amount of Rs. 24.50 lacs. The petitioner tried to liquidate the loan amount, but she could not do so and as per her information, the same has been confirmed in favour of the auction purchaser. The husband of the petitioner faced great losses in the business and went in depression due to which he left the petitioner and minor daughter and his whereabouts are not known.