S. K. Puri vs Pardeep Kumar Puri And Others
2021 Latest Caselaw 1421 j&K

 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU
                                                Reserved on: 01-10-2021
                                              Pronounced on: 09/11-2021

                                                        CR No. 41/2018
                                                      CM No. 3269/2021
                                                         IA No. 1/2018
S. K. Puri
                                                ... Petitioner/Appellant(s)
Through: Mr. Gagan Basotra, Sr. Adv. with Ms. Navdeep Kour, Adv.

                          V/s
Pardeep Kumar Puri and others
                                                        ... Respondent(s)

Through: Mr. I. K. Sharma, Sr. Adv. with Mr. Mohit Kumar, Adv.

CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                 ORDER

09-11-2021

1. The instant revision petition is directed against order dated

24.9.2018 passed by the court of Principal District Judge, Jammu.

2. Before adverting to the grounds of challenge urged in the instant

petition by the petitioner, a brief background of the case is

delineated hereunder:

i) A suit for recovery of Rs.73,22,000/- under Order 37 CPC

came to be instituted by the predecessor-in-interest of

respondent 1 namely Shayam Puri against the predecessor-

in-interest of respondents 2 to 4 herein being file No.

101/suit before the court of Principal District Judge, Jammu

(hereinafter the trial court).

ii) In terms of order dated 30.1.2009, during the pendency of

the suit, an application came to be filed by plaintiffs for

attaching the property of the defendants before judgment

while apprehending that the defendants in order to defeat

the suit of the plaintiffs are hellbent to alienate and dispose

of the property comprising of Cybernetic School, its

buildings and land. The said order came to be passed taking

into account the contention of the plaintiffs as also a copy

of the agreement to sell relating to the said property

purported to have been entered into between the defendant

with one Manmohan Singh and Mir Showkat Hussain. The

said order dated 30.1.2009 had been passed subject to the

condition that if the defendant furnishes a surety to the

extent of the suit amount and the costs, the property will be

released.

iii) The suit came to be decreed by the trial court in terms of

judgment and decree dated 8.8.2017.

iv) An execution petition came to be filed on 21.11.2017 by

the decree holder for execution of decree before the

executing court.

v) An application came to be filed on 14.8.2018 by the

petitioner herein as an objector in terms of Order 21 Rule

58 CPC (for short O21 r58) contending therein that he has

purchased the property in question as a bona fide purchaser

in terms of sale deeds dated 22.3.2012 and 15.6.2012 and

as such had been in possession of the said property. The

objector prayed for recalling of order dated 3.5.2018 passed

by the executing court whereby warrant of attachment of

the property in question had been issued.

vi) The judgment debtor also had filed an application on

11.9.2018 for setting aside judgment and decree, and for

staying the execution contending in the said application that

she is in possession of the property and is running a school

therein the said property under the name and style of

"Cybernetic Secondary School" spread over two acres of

land with a built-up area of 4038 sqm and 4055 sqm area of

playground.

vii) Both the applications filed by the objector petitioner herein

as also the judgment debtor came to be dismissed by the

executing court in terms of orders dated 24.9.2018 and

19.12.2018 respectively. While the defendant judgment

debtor did not challenge order dated 19.12.2018 and same

assumed finality, the objector petitioner herein challenged

order dated 24.9.2018 in the instant petition.

3. The impugned order is being challenged by the objector

petitioner herein inter alia on the grounds that the same has been

passed erroneously and is unsustainable having been passed

without taking into account provisions of Order 38 Rule 21 CPC.

The impugned order is further stated to have been passed without

application of mind and in a slipshod and cryptic manner. The

impugned order is also stated to have been passed without

disclosing the effect of initial order of attachment before

judgment passed by the court on 30.1.2009 which too is stated to

have been passed in violation of Order 38 Rule 5 and 7 read with

Order 21 Rule 54 CPC. The trial court is also stated to have not

followed further subsequent procedure after passing of the

attachment order dated 30.1.2009 as provided under Order 21

Rule 54 CPC and that the decree holder cannot derive any

interest or right over the property in pursuance of the said

attachment order dated 30.1.2009. It is further urged in the

grounds that the trial court had failed to take any subsequent

steps in pursuance of the attachment order dated 30.1.2009

provided under Form 24 of Appendix-E as well as Form-5 of

Appendix-F of CPC as the said order was not pasted on the

property in question and no report was ever sought by the

concerned agency somuch so that the said order was not even

communicated to the concerned through Deputy

Commissioner/Tehsildar for necessary action resulting into non-

endorsement of attachment order in the necessary revenue

records and thereby not providing any clue or knowledge of the

said attachment order to the objector petitioner herein who

purchased the said property from the predecessor-in-interest of

the defendant judgment debtor on the basis of FardeIntikhab duly

attested by the concerned agency which Intikhab did not mention

the passing of the attachment order dated 30.1.2009. The property

thus is stated to have not been under custodia legis of the trial

court and that the trial court without taking into account the said

position erroneously rejected the application of the objector

petitioner herein. It is further urged in the grounds that the initial

order of attachment dated 30.1.2009 passed by the trial court is

null and void and non-est, and, therefore, the executing court

could not have placed reliance on the said attachment order dated

30.1.2009 while passing the impugned order dated 24.9.2018. It

is further urged in the grounds that the court below did not

balance the equities and attached the entire land comprising of 8

kanals and 7 marlas while as the court below ought to have

attached only 2 kanals and 7 marlas of land having regard to the

circle rate of the said land notified by the Deputy Commissioner

vide notification dated 28.3.2018 notifying the rate of the land

per kanal as Rs. 86.46 lakh for commercial and Rs. 50.82 lakh for

residential plot and that since the present land being commercial,

the court below could have directed auction for two kanals while

protecting the interests of the petitioner herein being a bona fide

purchaser of the property in question. The executing court is

stated to have thus divested the objector petitioner herein of the

whole property resulting into an irreparable loss to the petitioner.

4. Heard learned counsel for the parties and perused the record.

5. Before proceeding to deal with the petition in hand, it would be

appropriate to refer to the provisions of O21 r58, being relevant

and germane herein. O21 r58 is extracted and reproduced

hereunder:

ORDER 21, RULE 58

ADJUDICATION OF CLAIMS TO, OR OBJECTIONS TO

ATTACHMENT OF, PROPERTY.

(1) Where any claim is preferred to, or any objection is made to the

attachment of, any property attached in execution of a decree on the

ground that such property is not liable to such attachment, the Court

shall proceed to adjudicate upon the claim or objection in accordance

with the provisions herein contained:

Provided that no such claim or objection shall be entertained-

(a) where, before the claim is preferred or objection is made, the

property attached has already been sold; or (b) where the Court

considers that the claim or objection was designedly or

unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest

in the property attached) arising between the parties to a proceeding or

their representatives under this rule and relevant to the adjudication of

the claim or objection, shall be determined by the Court dealing with

the claim or objection and not by a separate suit.

(3) Upon the determination of the questions referred to in sub-rule (2),

the Court shall, in accordance with such determination:

(a) allow the claim or objection and release the property from

attachment either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or

other interest in favour of any person; or

(d) pass such order as in the circumstances of the case it deems

fit.

(4) Where any claim or objection has been adjudicated upon under this

rule, the order made thereon shall have the same force and be subject to

the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the

proviso to sub-rule (1), refuses to entertain it, the party against whom

such order is made may institute a suit to establish the right which he

claims to the property in dispute; but, subject to the result of such suit,

if any, an order so refusing to entertain the claims or objection shall be

conclusive.

6. A bare perusal of above provision suggests that whenever a claim

is preferred under O21 r58 against attachment of an immovable

property, the court is vested with jurisdiction to adjudicate on the

said claim or objection and upon determination of such claim, the

court has to,in accordance with such determination, either allow

the claim or objection and release the property for attachment, or

disallow the claim or objection, or continue the attachment

subject to mortgage, charge or other interest in favour of any

person or pass such order as in the circumstances of the case it

deems fit.

O21 r58 is a solitary provision relating to any claim that

may be preferred or any objection that may be raised to the

attachment of any property in execution of a decree, thus any sale

hat is held would undoubtedly be subject to the order that may be

passed by the executing court.

The scope of investigation under O21 r58 is to find out

whether the property attached in execution is or is not liable to

the attachment. The objector has to establish that the property

belonged to him in his own right and he was in possession of it.

Once a claim is preferred or an objection is raised against the

attachment of the property, the court is not enjoined to adjudicate

the matter unless the case is covered by proviso to sub-rule (1) of

Rule 58. The court cannot reject a claim without adjudication

merely on the ground that the question of title or possession is

doubtful or complicated in nature.

7. Keeping in mind the aforesaid provision of law, its ambit and

scope, the impugned order may be examined in the backdrop of

the grounds urged in the petition and having regard to the facts

and circumstances of the case.

8. Perusal of the impugned order tends to show that the trial court

while deciding the application filed by the petitioner herein under

O21 r58 has heavily relied upon the order of attachment dated

30.1.2009 passed during the pendency of the suit upon an

application filed by the plaintiff in the suit for attachment of the

property before judgment. Indisputably the said order had been

passed by the trial court at that relevant point of time upon failure

of the defendant to comply with the direction of furnishing

security to the extent of the suit amount.

9. Perusal of the record would reveal that the executing court while

passing the impugned order has overlooked the fact that the

property in question had not actually been attached in terms of

order dated 30.1.2009 passed by the trial court, but was actually

attached in terms of order dated 3.5.2018 passed by the executing

court, as revealed by order dated 10.9.2018 of the executing

court. Thus, placing reliance on the order of attachment before

judgment dated 30.1.2009 while deciding the application of the

objector petitioner herein filed under O21 r58, by the executing

court is not legally tenable. The said attachment before judgment

order had in essence paled into insignificance after the passing of

order of attachment by the executing court dated 3.5.2018. The

executing court thus has grossly erred and in the process failed to

address to the issue raised by the objector petitioner herein in the

application filed under O21 r58.

10. Perusal of the impugned order further tends to show that no

enquiry whatsoever has been held by the executing court in the

application filed by the objector petitioner under O21 r58. The

application of the objector petitioner has not seemingly received

proper and appropriate consideration by the executing court. The

impugned order has been passed without adverting to the facts

and circumstances of the case inasmuch as the provisions of O21

r58 in its true and correct perspective and has been passed

contrary to the mandatory language and scheme of the provisions

of O21 r58 thus constituting failure to exercise jurisdiction

inasmuch as exercise thereof with material irregularity warranting

interference by this court in exercise of revisional jurisdiction.

11. Thus, what has been observed, considered and analyzed

hereinabove, the instant petition deserves to be allowed while

setting aside the impugned order, requiring the executing court to

revisit and reconsider the application of the objector petitioner

herein filed under O21 r58 in accordance with law affording

adequate opportunity of hearing to the concerned parties.

Accordingly, petition is allowed and impugned order dated

24.9.2018 is set aside with a direction to the executing court to

reconsider and revisit the application of the objector petitioner

herein filed under O21 r58 in accordance with law uninfluenced

by any observation made by this court.

12. Further, nothing hereinabove shall be construed to be expression

of any opinion qua the issue(s) raised by the objector petitioner

herein in the application filed under O21 r58.

13. Parties to appear before the executing court on 18.11.2021.

(JAVED IQBAL WANI) JUDGE Jammu:

           09.11.2021
           N Ahmad

                               Whether the order is speaking:         Yes
                               Whether the order is reportable :      Yes




NISSAR A BHAT
2021.11.09 17:10
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