WPMS/1087/2019
2021 Latest Caselaw 3693 UK

IN THE HIGH COURT OF UTTARAKHAND
                        AT NAINITAL
     ON THE 18th DAY OF SEPTEMBER, 2021
                               BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

        Writ Petition (M/S) No. 1087 of 2019
BETWEEN:
Himanshu Ojha                                       .....Petitioner
      (By Mr. Kurban Ali, Advocate)

AND:

State of Uttarakhand and others                  ......Respondents
      (By Mr. Yogesh Tiwari, Standing Counsel with Mr. Ramesh Chandra
      Joshi, Brief Holder for the State)

                            JUDGMENT

Petitioner has challenged the order dated 03.04.2019 passed by learned Civil Judge (Senior Division), Pithoragarh in Execution Case No. 6 of 2016. By the said order, learned Executing Court has directed for attachment of immovable property of petitioner.

2. It transpires that Uttaranchal Gramin Bank filed a suit for recovery of ` 4,37,755/- against the petitioner in view of default committed by him in re-payment of the loan, which was decreed vide judgment dated 23.02.2012. Subsequently, the Bank put the decree to execution by filing Execution Case No. 6 of 2016. Before the Executing Court, petitioner moved an application seeking time for depositing the decreetal amount. Learned Executing Court rejected petitioner's application and ordered for attachment of his immovable property vide order dated 03.04.2019, against which this writ petition has been filed.

3. Learned counsel for the petitioner submits that parties had arrived at an out of Court settlement, according to which, petitioner was liable to pay a sum of ` 5,28,468/- to the Bank. He further submits that, against the said amount, petitioner has already deposited a sum of ` 21,500/- with the Bank. He further submits that alongwith the application seeking time, which was rejected by the impugned order, petitioner had deposited a sum of ` 10,000/-, however, these aspects have been overlooked by the Executing Court. He further submits that, before invoking power under Order 21 Rule 54 C.P.C., learned Executing Court must come to a conclusion that, despite sufficient means, judgment debtor has refused/neglected to pay the decreetal amount.

4.            This    Court     is       not    impressed         by      the
submissions      made      by        learned       counsel       for      the
petitioner.      Order 21 Rule 54 C.P.C. enables the

Court to attach the immovable property of the judgment debtor in order to prohibit him from transferring the same to any person or from creating any charge over the said property, however, such attachment is subject to Order 21 Rule 55 C.P.C., which provides that the attachment shall be deemed to be withdrawn, if the amount decreed with costs and all charges/expenses are paid into Court or the satisfaction of the decree is otherwise made through the Court or certified to the Court or the decree is set aside or reversed. Therefore, in the humble opinion of this Court, the order passed by Executing Court does not suffer from any infirmity, which may warrant interference under Article 227 of the

Constitution of India. The amount, if any, deposited by the petitioner, in terms of the decree, shall be adjusted towards the decreetal amount sought to be recovered from him. If petitioner makes prayer for a reasonable time for satisfying the decree, the same shall be considered by the Executing Court, in accordance with law.

5. With the aforesaid observation, the writ petition stands disposed of.

(MANOJ KUMAR TIWARI, J.) Shubham