Delhi High Court
Shobha Anand Mohatta vs Dony Polo Udyog Ltd & Anr on 9 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 9th July, 2018
+ EX.F.A. 28/2018
SHOBHA ANAND MOHATTA ..... Appellant
Through: Mr. Sitikanth Nayak, Adv.
Versus
DONY POLO UDYOG LTD & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.26589/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
EX.F.A. 28/2018 & CM No.26588/2018 (for stay)
3. This Execution First Appeal impugns the order (dated 27th April, 2018
of Additional District Judge (ADJ)-02, New Delhi District in Ex.
No.5290/2016) directing issuance of warrants for recovery of possession of
immoveable property and posting the warrants before the Administrative
Civil Judge on 2nd July, 2018 for allocation of bailiff and listing the
execution for report on 7th September, 2018.
4. It is the case of the appellant, (i) that in execution of a money decree,
filed by the respondent No.1 / decree holder, against the respondent No.2
Mohatta & Heckel Ltd. / judgment debtor, property No.20, Feroze Shah
Road, Kasturba Gandhi Marg, New Delhi of the appellant was attached; (ii)
the appellant filed objections under Order XXI Rule 58 of the Code of Civil
Procedure, 1908 (CPC) contending that her husband is a Director of the
respondent No.2 / judgment debtor and she has no official connection with
EX.F.A. 28/2018 Page 1 of 5
the respondent No.2/judgment debtor and the subject property being her
personal property and not the property of the respondent No.2/judgment
debtor could not be attached in execution; (iii) that during the hearing of the
said objection on 19th February, 2018, the learned ADJ directed the personal
appearance of the appellant and her husband on 9 th March, 2018; (iv) that on
9th March, 2018, though the appellant and her husband appeared but the
learned ADJ was on leave; the copy of the order dated 9 th March, 2018 has
however not been produced; the proceedings were adjourned to 27 th April,
2018; (v) that on 27th April, 2018, the following order impugned in this
appeal was passed:
"27.04.2018
Present: Shri Satish Kumar, Ld. Counsel for DH.
None is appearing for applicant ShobhaMohta who has
moved an application u/o 21 rule 58 CPC. Matter is
accordingly adjourned subject to cost of Rs.5000/- upon the
applicant, to be paid to the DH. Meanwhile, warrant of
attachment be issued against JD on filing og PF. DH to
appear before Ld. ACJ on 02.07.2018 and report before this
court on 07.09.2018.
Bailiff is at liberty to break open the lock of premises as
well as to seek necessary police aid as earlier the report of
the Bailiff was to the effect that the lock/gate of the premises
was not opened by the person occupying the same."
5. The counsel for the appellant, on enquiry about the non-appearance of
the appellant or her husband or the Advocate on 27th April, 2018, states that
since he (i.e. the advocate) did not receive any instructions from the
appellant for appearance on 27th April, 2018, he did not appear.
EX.F.A. 28/2018 Page 2 of 5
6. On enquiry, whether he had filed the Vakalatnama for the entire
execution proceedings or was filing Vakalatnama or appearance on and for
each and every date of hearing, the counsel states that the Vakalatnama filed
was for the entire case.
7. The counsel having accepted engagement for the entire execution
proceedings, could not have chosen not to appear on 27th April, 2018 for the
reason of having not been instructed to appear for that particular date.
8. The learned ADJ is thus not found to have committed any error in
proceeding with execution, when the appellant as objector chose not to
appear. An objector in an execution proceeding and/or his/her Advocate, by
adopting such tactics cannot make the Executing Court issue afresh
invitation for appearance or stall the execution of the decree. It is for the
reason of such practices adopted during execution that it has come to be
believed that execution of a decree takes more than double the time than
taken in the passing of the decree itself.
9. The counsel for the appellant has also argued that the learned ADJ
issued warrants, without a decision on the objection. It is stated that even if
the appellant and her Advocate had not appeared on 27th April, 2018, without
dismissing the objections preferred, the warrants could not have been issued.
10. Merely because the learned ADJ has shown indulgence to the
appellant in not dismissing the objections but adjourning the same subject to
costs, cannot vest any advantage in the appellant. It cannot be lost sight of
that the objections can be considered till before the property is put to sale in
execution of money decree. There was thus valid reason for the learned ADJ
for granting another opportunity to the appellant to appear and argue.
EX.F.A. 28/2018 Page 3 of 5
11. In fact, an appeal under Order XXI Rule 58 of the CPC lies against a
decision on the said objections and the order impugned does not qualify as a
'decision'.
12. The counsel for the appellant has referred to the judgment of the
Division Bench of the Andhra Pradesh High Court in B. Nookaraju Vs.
M.S.N. Charities AIR 1994 AP 334.
13. The Executing Court in that case had held that the objector had not
established his claim. It was in this circumstance that such an order was held
to be a deemed decree. I am unable to see as to how the aforesaid judgment
applies to the facts of the present case. The counsel for the appellant,
without reading the facts, has cited the ratio in the facts before the High
Court of Andhra Pradesh, to the present controversy.
14. The appellant in the present case, though according to the counsel for
the appellant has knowledge of the order dated 27th April, 2018 with effect
therefrom only, instead of approaching the ADJ immediately, explaining the
reasons for non-appearance and seeking decision on the objections, has
chosen to prefer this appeal after the date on which the warrants were
ordered to be placed before the Administrative Civil Judge. It is quite
obvious that the purport of the appellant is only to delay; alternatively, the
appellant is conducting the objections in lackadaisical manner and for which
again the appellant is herself to blame. The appellant cannot thereby cause
any prejudice to the respondent no.1 / decree holder.
EX.F.A. 28/2018 Page 4 of 5
15. Else, the counsel for the appellant only wants to argue the objections
on merits before this Court and which is not permissible in law.
16. There is no merit in the appeal which is dismissed with costs of
Rs.10,000/- payable to the Delhi High Court Advocates Welfare Trust.
A copy of this judgment be given dasti.
RAJIV SAHAI ENDLAW, J.
JULY 09, 2018
'bs'..
