LAKSHMI SHARMA Vs. HANS RAJ GERA

JUDGEMENT

(1.) This writ petition has been filed by the petitioners against the order dated 21.11.2019 passed by the Executing Court, whereby the learned Executing Court refused to frame issue/s and to take evidence for deciding the objections raised under Order 21 Rule 58, 59 and 105 CPC.

(2.) Facts of the case, as per petitioners, are that before 2011, the respondent-judgment debtor was the owner of the suit shop. On 14.7.2011, the judgment debtor took a loan from Dena Bank, Ambabadi Branch, Jaipur by mortgaging the shop to it vide hypothication agreement dated 14.7.2011. Since the judgment debtor did not pay the loan amount due to the bank, the bank attached the shop in the year 2018. The bank issued an auction notice for sale of the shop by e-auction. Thereafter vide registered sale deed dated 10.9.2018, the shop was purchased by the petitioners at the penultimate stage i.e. just before the shop was about to be sold by e-auction, by paying Rs. 42,75,000/- to the bank in the loan account of the judgment debtor. Thereafter the petitioners obtained the documents from the bank and took physical possession of the shop and since then, they are doing their business therefrom. On 18.12.2018, an order of attachment of the shop issued under Order 21 Rule 54 CPC was affixed on it. Upon making enquiries, the petitioners came to know that an order dated 26.11.2018 for attachment of the shop in question was issued by the Addl. District Judge No. 7, Jaipur Metropolitan, Jaipur in pursuance of the execution of decree dated 25.1.2016 passed by the Addl. District Judge No. 4 (North West), Rohini, Distt. Court, Delhi against the judgment debtor and in favour of the decree holder respondent in a suit for recovery of money, which was transferred to the Executing Court for execution. Being aggrieved, the petitioners filed an application under Order 21 Rule 58, 59 and 105 readwith Section 151 CPC raising objection against the attachment proceedings. The learned Executing Court vide order dated 24.11.2019 refused to frame issue and to take evidence for deciding the objections raised under Order 21 Rule 58, 59 and 105 CPC. Hence, this writ petition.

(3.) Learned counsel for the petitioners submits that the petitioners are the bonafide purchasers of the shop in question. Learned executing court before proceeding further in the matter, was required to frame issues regarding the objections raised by the petitioners and after taking evidence thereon, ought to have decided the objections. He further submits that the learned Executing Court while passing the impugned order refusing to frame issue and taking evidence for deciding the objections, relied on the provisions of Order 21 Rule 102 CPC, but the said provision is not applicable in the instant case for the reason that the said provision applies only in the case of immovable property, but in the instant case decree passed was neither for possession of immovable property nor for dispossession of any person therefrom. However the learned executing court has utterly failed to consider this aspect of the matter. On this count, the impugned order is liable to be quashed and set-aside.