SAVITA THAKUR Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The above appeal has been filed against the order of the learned Single Judge of this Court dated 14.10.1997 in OMPs No. 461 and 462 of 1996 in Execution Petition No. 10 of 1992 whereunder the learned Single Judge came to dismiss the application filed under Order 21, Rule 58 of the Code of Civil Procedure, objecting to the execution of the decree obtained against Gulab Singh, judgment debtor No. 2 in the suit, who is the husband of appellant No. 1 and the father of appellant Nos. 2 and 3.

(2.) The 1st respondent-Bank obtained a decree for Rs, 2,14,016.70 with costs and future interest at the rate of 12.5% per annum from the date of decree, which was passed on 10.3.1987 in Civil Suit No. 32 of 1986. The. said decree appears to have been modified on further appeal in R.F.A. No. 90 of 1987,which came to be decided on 30.6.1997 wherein interest was said to have been allowed from the date of suit in addition to allowing a further sum of Rs. 22,424/-. In execution of the said decree, proceedings appears to have been initiated by filing the Execution Petition and it is seen further that the judgment debtors have been moving one application or the other by taking objections to stall the execution of the decree, under some pretext or the other. It appears that on 29.7.1994, an order has been made by the Judge dealing with the Execution Petition that the property of judgment debtor No. 2. who is the husband of appellant No. 1 and the father of appellant Nos. 2 and 3 be attached and sold. It is also seen from the materials on record that judgment debtor No. 1 Kamal Sharma has borrowed certain amounts from the Bank for which judgment debtor No. 2 stood as surety. In the application filed in OMP No. 461 of 1996, the objection raised by the objectors/appellants, as noticed above, is that the properties which have been ordered to be attached and sold are in fact joint Hindu family ancestral property of the objectors and Gulab Singh, who was only the 'Karta' and that the objectors owned 1/ 16th undivided share and that the property came into the hands of Karta Gulab Singh itself, by rule of survivorship from his ancestors and though in the revenue records Gulab Singh is recorded as owner in possession of l/4th share yet he held the said share only as 'Karta' of the joint Hindu family consisting of his wife and two minor sons, each of whom according to the appellants had an undivided 1/16th share. The further objection seems to have been that the action of Gulab Singh in having stood surety and guaranteed the due payment of the sum borrowed by judgment debtor No. 1 from the decree holder-Bank is not either in the interest or for the benefit of joint Hindu family nor could the same be said to be for the legal necessity and, therefore, the debt as well as decree is not binding on them and consequently their share in the property could not at any rate, be sold in the execution of the decree obtained against judgment debtor No. 2. The other objection seems to be that it is the only residential house of the objectors and the same is not, therefore, liable for attachment and sale. The objectors appear to have placed on record the pedigree table delineating the names of their ancestors/predecessor- in-interest and also the extracts of Jamabandis to support their claim.

(3.) So far as the decree holder-Bank is concerned, it opposed the claim of the appellants raised in the form of the objections by contending that though the objectors were well aware of the pendency of the Execution Petition for considerably long time, they have not chosen to come to the Court at the earliest and have been making such belated objections in order to indefinitely drag on the proceedings and stall the realisation of the amount due under the decree. After considering the materials on record, the learned Single Judge overruled the objections raised to the sale of the properties in question and ordered the dismissal of the objection petition, namely, O.M.P. No. 461 of 1996 and the stay application filed in O.M.P. No. 462 of 1996. In over-ruling the objections, the learned Single Judge held that even the judgment debtor No. 2 filed the objections initially contending that the property is agricultural land and is being wrongly attached and sold in the execution of the decree and that the family being that of agriculturist, the same cannot be deprived of the only source of their income and livelihood from the land. Likewise, an objection appears to have been raised also on the ground that it is the only residential house of the judgment debtors, which is absolutely necessary for living and enjoyment of the members of the family. Those objections, which were raised in O.M.P. No. 393/94 came to be dealt with and finally rejected by the learned Single Judge by an order dated 26.10.1994 and it is only thereafter, the property was sought to be attached and sold. The learned Single Judge also held that inasmuch as the objections of the predecessor-in- interest have already been considered and rejected, it is too late and futile for the objectors to file such objections again, particularly, when judgment debtor No. 2 projected himself as the owner in possession of the property to the extent of l/4th share in the agricultural land in question and no inspiration or help could be drawn by the appellants from the copies of Jamabandis placed on record by them. Hence, the objectors have filed the appeal, aggrieved by the order of the learned Single Judge.