VIMLA Vs. VINOD KUMAR BRIJ MOHAN

JUDGEMENT

(1.) Heard learned counsel for the parties. Perused the order under challenge dated 2.6.92 passed by the Court of Additional Distt. Judge No. 1, Sriganganagar in Misc. Civil objection petition No. 5/1987 by which the objection petition of the appellant/applicant Smt. Vimla was dismissed under Order 21 Rule 58 C.P.C. against which the appellant has preferred this appeal. According to the learned counsel for the appellant, the appellant purchased some portion of house in dispute by registered sale-deed which is clear from certified copy of sale-deed Ex. 2. According to learned counsel for the appellant, sale-deed was proved by the appellant's witness AW-1 Surya Prakash and, therefore, it is clear that appellant-applicant is the owner of the property in dispute which is subject matter in the execution petition. According to learned counsel for the appellant, original suit No. 2/80 was filed by M/s. Vinod Kumar Brij Mohan against firm M/s. Liladhar Rathi and others impleading its partner Rameshwar Lal, Kanhaiyalal and his two brothers Om Prakash and Mahaveer Prasad. The suit was filed for recovery of Rs. 26,999.95. The learned counsel for the appellant placed on record certificate copy of the suit No. 2/80 and the relevant order-sheet of the above suit. It is submitted that the suit was filed only on 26.7.80 and that too without payment of court fees. According to the learned counsel for the appellant when the suit was not properly constituted and it was without any court fees, therefore, in the eye of law it cannot be said that the suit was pending till the proper court fees was paid. It is also submitted by counsel for the appellant that the suit was decreed by the trial Court on 20.11.84. It is also submitted that after getting the decree, plaintiff-respondent initiated the execution proceeding and since appellant-applicant came to know that appellant's house is going to be auctioned, she filed the objection petition under Order 21 Rule 58 CPC. It is alleged by the appellant-applicant that house in dispute was purchased by the applicant-appellant by registered sale-deed dated 30.6.80 from her husband Kanhaiyalal, judgment debtor who was defendant by name in the civil original suit No. 2/80. The appellant also submitted the certified copy of the sale-deed in support of the objection petition which shows that above sale-deed was presented for registration on 31.7.80. According to learned counsel for the appellant till that date, notice of suit was not even served upon Kanhaiyalal, husband of appellant, therefore, there was no bar of execution of sale-deed by Sh. Kanhaiyalal in favour of any person including the appellant. It is also stated that property in dispute was not attached on 30.7.80 or on 31.7.80, therefore, also there was no bar of transfer of property in dispute. In view of registered sale-deed in favour of appellant, it is clear that the title vests in the appellant- applicant from the date of execution dated 30.7.80 and, therefore, the house of appellant cannot be attached and put to auction in execution of a decree against the firm Liladhar Rathi or its partner including Kanhaiyalal who is husband of appellant-applicant. Kanhaiyalal is having separate independent legal entity; whereas appellant is, though his wife, but having separate legal entity as she purchased the property and also right to put the property in auction, therefore, appellant cannot be deprived of the property in the execution of decree which was granted against him M/s. Liladhar Rathi and its partner.

(2.) The decree holder submitted reply to the objection petition of the appellant before the Executing Court and it is stated that the appellant is wife of judgment debtor Kanhaiyalal and she has no possession of any of the portion of the house and sale-deed was not executed in accordance with law. The Executing Court after framing issues gave opportunity to lead evidence of both the parties, upon which appellant herself did not appear in witness box, but one of alleged power of attorney holder Surya Prakash gave statement before the Court below and produced the power of attorney executed by the appellant in favour of Surya Prakash. In the same way, the decree holder produced witness Brij Mohan, who is also power of attorney holder of decree holder.

(3.) After arguments, Executing Court rejected the above objection petition by order dated 2.6.92 holding that the sale-deed was executed to avoid the attachment and the legal proceedings of decree holder and in view of this finding objection petition was dismissed.