Punjab-Haryana High Court
M/S Rimpy Enterprises And Another vs Parveen Lata (Deceased) Through ... on 27 April, 2023
Neutral Citation No:=2023:PHHC:060255
2023:PHHC:060255
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2404-2023 (O&M)
Date of Decision: April 27, 2023
M/s Rimpy Enterprises and another
...Petitioners
Versus
Parveen Lata (Deceased) through her LRs
...Respondent
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Surinder Garg, Advocate
for the petitioners.
Ms.Amrita Garg, Advocate
for caveator/respondent.
****
ARCHANA PURI, J.
Challenge in the present petition is to the order dated
03.04.2023 (Annexure P-18) passed by learned Addl. Civil Judge (Sr.
Divn.), whereby, the applications filed by the petitioners-defendants, under
Order 21 Rule 26 CPC and for recalling the order dated 15.02.2023, vide
which, non-bailable warrants had been issued, were dismissed.
The background facts, as culled out, from the paperbook, are
that, initially, Parveen Lata (since deceased) had filed a suit for recovery of
Rs.43,19,535/- along with interest against present petitioner, on the
allegations that the petitioners-defendants used to purchase cotton from the
respondent-plaintiff and after adjustment, an amount of Rs.49,45,381/- was
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due on 31.03.2016, which had not been paid by the petitioners-defendants.
Even though, fact of business dealings, as such, has not been
disputed, but however, it was claimed by the present petitioners that
settlement had reached between the parties, in the shape of Canter and land
and in this regard, a writing was also given by the respondent-plaintiff.
Without mentioning the fact of settlement, so reached, the respondent-
plaintiff had filed suit for recovery. In this context, when the petitioners-
defendants met the respondent-plaintiff, they were apprised that the
summons have been wrongly issued and the matter has already settled
between them and respondent-plaintiff shall withdraw the suit. On this
assurance, the petitioners-defendants, did not make appearance, but
however, suit was not withdrawn and consequently, ex-parte decree was
passed on 31.10.2019 against the petitioners-defendants.
On coming to know, about passing of the ex-parte judgment
and decree, the petitioners-defendants filed an application under Order 9
Rule 13 CPC, thereby, seeking setting aside of the judgment and decree,
copy whereof is Annexure P-3. During the pendency of the said
application, since, there was no stay, execution remained pending and in
the said execution, the respondent-plaintiff gave list of property of the
petitioners-defendants, which is factory premises. Jamabandi annexed was
for the year 2010-11, whereas, the petitioners-defendants had already sold
the property vide sale deed dated 12.01.2017 and as such, the respondent-
plaintiff had given wrong list of property, to mislead the Executing Court.
In pursuance of the attachment of the said property, one Harish
Goyal-objector, who was purchaser of half share of factory premises, filed
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objections under Order 21 Rule 58 CPC, mentioning therein that
petitioners-Judgment debtors are not owner of the property. Thereupon, the
Executing Court, vide order dated 02.05.2022, allowed the objection
petition filed by the purchaser of half share of the property and ordered the
release of the property. Copy of the said order passed on the objection
petition is Annexure P-4. While releasing the property from attachment,
also the concerned Executing Court had ordered the decree holder i.e.
respondent-plaintiff, to file fresh list of properties on 30.05.2022.
However, the list of properties was not filed.
Thereafter, before Executing Court, an application under
Order 21 Rule 37 CPC was filed by the respondent-plaintiff-decree holder,
upon which, notice was sent to the petitioners-judgment debtors. However,
service was not effected, at first instance. Thereafter, when the service was
effected, the petitioners-judgment debtors did not make appearance and
consequently, non-bailable warrants against the petitioners was ordered to
be issued, vide order dated 15.02.2023, copy whereof is Annexure P-11.
In this backdrop, an application for recalling of the order dated
15.02.2023, vis-a-vis, issuance of non-bailable warrants was filed by the
petitioners-judgment debtors. Another application was also filed under
Order 21 Rule 26 CPC for seeking stay of the execution as respondent-
plaintiff had filed appeal to challenge the order passed on application under
Order 9 Rule 13 CPC.
Vide impugned order, both the aforesaid applications were
dismissed.
Feeling aggrieved, the petitioners-defendants-judgment
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debtors have filed the present revision petition.
Before proceeding further, suffice to consider that vis-a-vis,
application under Order 21 Rule 26 CPC seeking stay of proceedings
before the Executing Court, on the ground that appeal to challenge the
order passed on the application under Order 9 Rule 13 CPC, is pending, on
query, learned counsel for the petitioners-defendants has very fairly made
submission that he does not assail the impugned order, vis-a-vis, this
application, as he is seeking stay of proceedings before learned lower
Appellate Court, where, an appeal, vis-a-vis application under Order 9 Rule
13 CPC is pending. As such, in the present revision petition, relief qua
application under Order 21 Rule 26 CPC is not pressed.
In these circumstances, the impugned order is assailed only
qua recalling of the order dated 15.02.2023, vide which, the non-bailable
warrants of the petitioners-defendants was issued to procure their presence.
It is submitted that by learned counsel for the petitioners-
judgment debtors that the application for seeking detention in prison of the
petitioner No.2-judgment debtor was sought without complying the order
passed in the application under Order 21 Rule 37 CPC. Also, it is
submitted on account of his medical ailment, having arisen on account of
fall from the stairs, petitioner No.2 could not make appearance before the
Court below and for this reason, his remaining away from the Court is not
intentional. As such, there is bonafide reason for not making appearance
before the Court concerned. Considering the same, it is submitted that the
impugned order of issuance of non-bailable warrants should be recalled.
Moreover, also it has been submitted that prior to the filing of
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the application for seeking detention in prison of judgment debtor, the
respondent-plaintiff, as such, has not complied with the direction given by
the Court below, about furnishing of the list of properties, passed at the
time of acceptance of objection petition under Order 21 Rule 58 CPC. As
such, a prayer has been made for acceptance of the present revision
petition.
On the contrary, learned counsel for the respondent-plaintiff
has resisted the claim of the petitioners-judgment debtors. It is submitted
that even though, there are different modes of execution but the choice is
with the decree holder, as to which mode, he intends to execute the decree,
in his favour. It is submitted that no doubt, at first instance, the
respondent-decree holder had intended to execute the decree against the
property of the petitioners-judgment debtors, but however, this simply does
not debar the respondent-decree holder from exhausting his remedy against
the person of the judgment debtors.
In this regard, it is submitted that the Order 21 Rule 30 CPC
provided that every decree for payment of money, including the decree of
payment of money as the alternative to some other relief, may be executed
by detention in civil prison of the judgment-debtor, or by the attachment
and sale of his property, or by both. Considering this provision, it is
submitted that very fairly, the respondent-plaintiff had proceeded against
the petitioners-judgment debtors, thereby, seeking detention in prison and
therefore, the impugned order, as such, cannot be faulted with.
Section 51 of CPC deals with powers of Court to enforce
execution. Therein, subject to the conditions and limitations, as may be
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prescribed, the Court may, on the application of the decree holder, order
execution of the decree, by different modes, as herein given:-
"(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment
of any property;
(c) by arrest and detention in prison *for such period not
exceeding the period specified in section 58, where arrest and
detention is permissible under that section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted
may require:"
The various modes mentioned in this Section are not open to
the Executing Court in every case. The Court ought to be guided by the
procedure laid down in the Code and must resort to the method appropriate
for each case.
Very true, as so pointed out by learned counsel for the
respondent-decree holder that simultaneous execution, both against the
property and person of judgment debtor is allowed under Order 21 Rule 30
CPC and there is no debar created by any provision in CPC, thereby,
debarring the decree holder to firstly carry out the execution against the
property of judgment debtor. It essentially does not provide that the decree
holder should exhaust his remedy against the property, at first instance.
However, considering the aforesaid position about the
simultaneous execution against the property and person of judgment
debtors, to be carried out, certain facts and circumstances, arising in each
case individually, ought to be taken into consideration.
As already observed aforesaid, in the pending execution, the
respondent-decree holder, firstly had started process for attachment of the
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property of the petitioners-judgment debtors. However, one Harish Goyal
had filed objection petition under Order 21 Rule 58 CPC and the same was
allowed vide order 02.05.2022 and the attached property was released. At
the time of disposal of the objection petition, a specific direction was given
to the decree holder to file fresh list of properties. This order is dated
02.05.2022 and the list was ordered to be filed on 30.05.2022. However,
the list of properties was not filed, till the filing of the application under
Order 21 Rule 37 CPC, on 03.10.2022.
On query put by the Court, it was submitted by learned
counsel for the respondent-decree holder that the submission was made
before the Court concerned that the petitioners-judgment debtors, as such,
does not have property. Moreover, an appeal qua allowing of the
objections under Order 21 Rule 58 CPC, was under challenge.
However, to counter the submission, so made, learned counsel
for the petitioners-judgment debtors has placed on record, copies of various
orders, so passed by the Executing Court, till the filing of the application
under Order 21 Rule 37 CPC. Perusal of the same reveals that on
30.05.2022, when the list of properties was not filed, the case was further
adjourned for filing of the same for 20.07.2022. Thereafter also, the list of
properties was not filed and again same order was repeated on 20.07.2022
and the case was adjourned for 01.09.2022 and then for 03.10.2022, for
filing of list of properties. However, it was on 03.10.2022, an application
under Order 21 Rule 37 CPC was filed. In the said order also, it was
observed by the Court that list of properties, as per order dated 02.05.2022,
has not been filed. Nowhere, it states about any intimation having been
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given by the respondent-decree holder about inability to file list of
properties for one or the other reason.
Thus, it is evident that without complying with the repeated
orders passed by the Executing Court for filing list of properties, abruptly
the respondent-decree holder, diverted her mode to seek execution of the
decree and proceeded against the person of judgment debtors, by seeking
his detention, by way of filing of an application under Order 21 Rule 37
CPC. This abrupt diversion from one mode to another, is uncalled for.
Things would have been different, had respondent-decree holder brought
this to the notice of the Court, by way of filing an application about
inability to file the list of properties or the judgment debtors not having
property, but however, respondent-decree holder has not so bothered. In
these circumstances, abrupt shifting from one mode to another mode for
seeking execution, as such, is uncalled for.
The issuance of non-bailable warrants is an off-shoot of the
steps initiated by the respondent-plaintiff against the person of the
petitioners-defendants, while discarding the another mode for seeking
execution of the decree in question, more particularly, when, respondent-
plaintiff has filed an appeal also, to challenge the order passed on the
application under Order 21 Rule 58 CPC, thereby, asserting about sale deed
in favour of the purchaser, being collusive.
In the given circumstances, the present revision petition is
hereby allowed and the order dated 15.02.2022 is set aside, qua issuance of
non-bailable warrants. However, respondent-plaintiff-decree holder may
proceed further, to seek execution of the decree, in any of the modes,
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provided under the law, after complying with the directions, so given or
making suitable submission before the Court concerned, vis-a-vis, ability
or non-ability for furnishing list of properties of the petitioners-defendants-
judgment debtors.
April 27, 2023 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:060255
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