M/S Onkar Plaster Decoration ... vs M/S Usha Foundation
2013 Latest Caselaw 395 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment delivered on: January 28, 2013

+                   Ex.P.No.34/2010 & E.A.No.246/2011

M/S ONKAR PLASTER DECORATION WORKS                     ..... Decree Holder
         Represented by: None.

                         versus

M/S USHA FOUNDATION                                    ..... Judgment Debtor
         Represented by:          None for JD.
                                  Mr.Virender Goswami, Adv. with Ms.Soni
                                  Singh, Adv. for objection, Ma Meenakshi
                                  Devi Trust.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The present execution petition has been filed by the decree holder for attachment of assets and properties i.e. movable and immovable, belonging to the judgment debtor. List of movable and immovable properties of the judgment debtor is filed along with the execution petition which is available at page 43 of the petition.

2. By order dated 20th August, 2010, warrants of attachment were issued qua property bearing No.B-II/100, M.C.I.E., New Delhi, as judgment debtor refused to accept the service. Thereafter, Meenakshi Devi Trust filed E.A.No.246/2011 i.e. objections, on its behalf under Order XXI read with Section 151 CPC. It is stated in para 3 of the application that the said attached property belongs to the trust i.e. Meenakshi Devi Trust which was gifted by an earlier existing trust, namely, Kaila Devi Trust in the year 2005 and since then the applicant is the owner of the said property. Initially a

major part of the property had been rented out to one M/s Finedge India Pvt. Ltd. in 2006 and thereafter, rented out to one New Delhi Institute of Management in 2007, the rental income received from the property was being reflected in the returns filed by the Trust. Apart from the above only one room was licenced to Usha Foundation who used it as its record room. The said Usha Foundation left this room in August 2009. Usha Foundation has no right, title or interest in the said property apart from what is mentioned herein. At present the property is rented to one Global School of Business and till date, subject property is under tenancy and the applicant is regularly receiving income from the said property.

3. Judgment debtor i.e. Usha Foundation has no right, title or interest in the said property i.e. No.B-II/100, M.C.I.E., New Delhi, and is also not occupying the premises at present. The decree holder has wrongly represented to this Court that the property of the applicant is that of the judgment debtor. The decree holder has without any basis made such representation to this Court malafidely and as such the decree holder has procured the attachment order by misrepresentation and falsely alleging that the said property belongs to the judgment debtor.

4. The prayer made in the application is that the order dated 20th August, 2012 be vacated in view of the statement made in the application in respect of the property bearing No.B-II/100, M.C.I.E., New Delhi, and release the said property from the attachment in the present execution petition.

5. This matter was listed before Court earlier on 4th September, 2012 no one appeared on behalf of the decree holder. In the interest of justice, the matter was renotified on 18th January, 2013. As 18th January, 2013 was holiday, the matter was listed on 21st January, 2013. The matter was called twice but no one appeared on behalf of the decree holder. The applicant has

made his submissions. However, since no one is taking any interest on behalf of the decree holder, who also did not appear before Court on 14th March, 2012, 16th August, 2011 and 21st February, 2011, therefore, without going into the merit of the submissions made by the applicant, the present execution petition is dismissed. The interim order granted on 20 th August, 2010 is vacated.

(MANMOHAN SINGH) JUDGE JANUARY 28, 2013/jk