Shri Yashbhushan Jain vs Radheshyam Agrawal
2024 Latest Caselaw 3872 MP

Madhya Pradesh High Court

Shri Yashbhushan Jain vs Radheshyam Agrawal on 9 February, 2024

Author: Vivek Rusia

Bench: Vivek Rusia

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK RUSIA
                                               ON THE 9 th OF FEBRUARY, 2024
                                               MISC. PETITION No. 707 of 2024

                           BETWEEN:-
                           SHRI YASHBHUSHAN JAIN S/O SHRI VEERCHAND JAIN
                           26, PATRAKAR COLONY, INDORE (MADHYA PRADESH)
                           SMT. SAROJ JAIN W/O SHRI YASHBHUSHAN JAIN R/O
                           26 PATRAKAR COLONY, INDORE (MADHYA PRADESH)

                                                                                        .....PETITIONERS
                           (BY SHRI MANOJ MUNSHI, ADVOCATE)

                           AND
                           RADHESHYAM AGRAWAL S/O BRIJMOHAN AGRAWAL
                           101, VIJAYA ROAD DEWAS (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (NONE FOR THE RESPONDENTS)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

The petitioners have filed the present petition under Article 227 of the

Constitution of India challenging the order dated 05.01.2024 passed by the First District Judge, Dewas in Execution Case No.34/2017, whereby the application filed by the decree holder under Order I Rule 10 r/w section 151 of the Code of Civil Procedure, 1908 has been allowed and the petitioners have been impleaded as judgment debtors in the execution proceedings.

02. Draped in brevity, the relevant facts are that respondent - Radheshyam Agrawal filed Civil Suit No.6-B/2006 for recovery of

Rs.24,45,000/- against (i) Himgiri Ice & Cold Storage Private Limited

(Khatamba), (ii) Smt. Poornima W/o Ajay Kumar and (iii) Ajay Kumar. Vide judgment dated 28.02.2006, a money decree of Rs.7,00,000/- was passed against all the three defendants.

03. When the aforesaid amount was not paid and no appeal was filed, the decree holder initiated the execution proceedings before the Civil Court. During pendency of the proceedings, one of the judgment debtor Smt. Poornima has sold the house to the present petitioners vide registered sale deed dated 25.01.2010, i.e. during the pendency of execution of judgment and decree. When the decree holder came into the knowledge of the above sale deed, he filed an application under Order I Rule 10 of the CPC alleging that the aforesaid

sale deed has been executed by one of the decree holder in order to defeat these proceedings, therefore, subsequent purchasers are also the necessary parties.

04. In the said application, notices were issued to the proposed parties, i.e. petitioners, they appeared and filed an objection. Vide order dated 05.01.2024, learned Court has allowed the said application. Hence, the present miscellaneous petition is before this Court.

05. Shri Munshi, learned counsel for the petitioners submits that when the petitioners purchased the property from Smt. Poornima, that property was never attached in the execution proceedings, therefore, they were free to purchase the property in question. As they are the bonafide purchaser, they cannot impleaded as parties in the execution proceedings as judgment debtors, therefore, the impugned order is bad in law. Learned counsel further submits that now Smt. Poornima is no more and she is free from execution proceedings, therefore, she cannot be punished for non-execution of the money decree.

Since the property in question was not attached in the execution proceedings, therefore, the petitioners were free to purchase the same. The amount of Rs.40,00,000/- was paid by way of cheque. It is further submitted that execution proceedings were dismissed in default and later on fresh proceedings were initiated after the death of Smt. Poornima. In subsequent proceedings, Smt. Poornima was not the judgment debtor, hence, these petitioners have wrongly been impleaded. It is also submitted that the property sold to the petitioners was not of the Private Limited Corporation but it was personal property of Smt. Poornima, therefore, she had right to sell the property. Learned counsel further submits that when this property was purchased by the petitioner, they had no knowledge that there is a decree against vendor and they purchased the property 'as it where it' basis.

06. Heard.

07. The suit was filed against Himgiri Ice & Cold Storage Private Limited, in which Smt. Poornima and her husband both were impleaded as Director. The decree was not passed against the Firm alone but it was jointly passed against the Directors also, therefore, all of them were jointly liable to pay the decretal amount to the plaintiff. In execution proceedings one of mode of recovery of the money is by way of attachment and sell of the property of any of the judgment debtor and before such step could be taken, she had sold the

property. Therefore, the learned Executing Court has rightly observed that the sale deed was executed in order to defeat the money decree. As on today the petitioners have been added as judgment debtor in the execution proceedings, therefore, they are free to raise all types objections in it. The order passed by the trial Court neither suffers from any infirmity nor from any perversity, hence, I do not find any reason to interfere with the same.

07. In view of the above, Miscellaneous Petition stands dismissed.

(VIVEK RUSIA) JUDGE Ravi