Uttarakhand High Court
AO/387/2022 on 30 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
30TH NOVEMBER, 2022
APPEAL FROM ORDER NO. 387 OF 2022
Between:
MDDA Ramky ISBT Ltd. ...Appellant
and
Sh. Aash Muhammad & another. ...Respondents
Counsel for the Appellant : Mr. L.B. Rai, learned counsel.
Counsel for the respondent no.1 : Mr. Neeraj Garg, learned counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
The present Appeal is directed against the
judgment dated 31.08.2022 passed by the Commercial Court,
Dehradun in Misc. Case No. 72 of 2021 preferred by
respondent-Aash Mohammed under Order 21 Rule 58 C.P.C.
read with Section 151 C.P.C. The Commercial Court
considered the objections of the respondent no. 1 and held
that the attachment of the property purchased by the said
respondent could not be sustained, and consequently, the
same could not be sold for execution of the money decree
obtained by the appellant herein against respondent no. 2.
2. In brief, relevant facts are that the appellant, being
the landlord of the premises wherein one Mr. Ombeer Singh
Tomar was the tenant who is impleaded as respondent no. 2,
initiated arbitration against the respondent no. 2-the tenant
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for non-payment of rent and obtained an arbitral award in its
favour. The money award stood confirmed, inasmuch as, the
objections of respondent no. 2 under Section 34 of the
Arbitration and Conciliation Act were rejected. The appellant
then initiated execution proceedings. In those execution
proceedings, the property in question was attached by the
Executing Court. The wife of respondent no. 2 preferred
objections to the said attachment, on the ground, that she
was the owner of the attached property, having purchased
the same in the year 2013. The objections were, however,
rejected on a technical ground, namely, that she was no
longer the owner of the property- having sold the same to
respondent no. 1 herein, within a matter of a few days of the
attachment order being passed. Thus, the issue whether the
property, which did not belong to the judgment-debtor, and
which was not mortgaged or pledged by the owner at the
instance of the judgment-debtor, could be attached, was not
gone into by the Executing Court. Subsequently, the
respondent no. 1 herein preferred objections, which have
been allowed by the Commercial Court/Executing Court by
the impugned judgment.
3. The submission of the learned counsel for the
appellant is that since the objection preferred by the
predecessor-in-interest of the respondent no. 1 had been
dismissed, he could not have maintained the same. The
order passed in the objections preferred by the wife of Mr.
Ombeer Singh Tomar, i.e., Smt. Sushma Tomar having
attained finality, subsequent objections could not be
maintained by her transferee in interest.
4. We do not find any merit in this submission, for the
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reason, that the objections preferred by Smt. Sushma Tomar
were rejected not on merits, but on the ground of her not
having the locus standi to file the same.
5. The further submission of the learned counsel for
the appellant is that the transfer of the attached property by
Smt. Sushma Tomar in favour of respondent no. 1 was hit by
Section 64 of the Civil Procedure Code, 1908 and, therefore,
even respondent no. 1 could not maintain the objections.
6. In our view, the appellant cannot have it both
ways. The objections of Smt. Sushma Tomar were rejected
on the ground that she was no longer the owner- thereby
recognizing that the property had passed on to the
respondent no. 1 herein. It is, therefore, not open to the
appellant to now contend that the transfer of the property,
after attachment in favour of respondent no. 1, was bad.
7. Either Smt. Sushma Tomar, or respondent no. 1
were entitled to maintain their objections under Order 21 Rule
58 C.P.C. Pertinently, there is no answer available with the
appellant to the question, as to how, the property of the wife
of the judgment-debtor - respondent no. 2, could be attached
in respect of debts of the husband, particularly when the
appellant had not shown that the property was acquired by
the wife after initiation of the arbitration proceedings for
recovery by the appellant. As noticed herein above, the
acquisition of the property by Sushma Tomar relates back to
the year 2013, which is much before the initiation of the
arbitral proceedings by the appellant.
8. We are therefore, not inclined to interfere with the
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impugned judgment.
9. The appeal is, accordingly, dismissed. We,
however, make it clear that it shall be open to the appellant
to execute the decree in all other ways, permissible under the
law.
___________________
VIPIN SANGHI, C. J.
______________
MANOJ KUMAR TIWARI, J.
Dt: 30.11.2022
A/NT
