Delhi District Court
The vs Nasim Ahmad on 9 July, 2010
IN THE COURT OF SHRI SAMAR VISHAL - CIVIL JUDGE OF (NORTH DISTRICT),
AT TIS HAZARI COURT DELHI
Ex. No. 266/06
MEMO OF PARTIES
Sh. Pattu Bhardwaj,
S/o Sh. Phool Chand Bhardwaj,
R/o B290, Navjeevan Camp,
DDA/Govind Puri, New Delhi. .........Decree Holder
VERSUS
Sh. Ranjeet Singh,
S/o Sh. Ram Dulare Singh,
R/o U406, Part I,
Prem NagarII, Near Nag Mandir,
Nangloi, Delhi41. .......Judgment Debtor
ORDER
The Plaintiff has obtained a decree against the judgment debtor for the recovery of Rs. 1,38,000/ on 31.01.2003. Thereafter he filed the present execution petition against judgment debtor for the recovery of the decreetal amount. When the decree could not be executed by the attachment of movable property, the decree holder has prayed for the attachment of immovable property of the judgment debtor. The request was made, stating that some portion of property was used for commercial purposes. To ascertain this statement of Counsel for decree holder, the Court appointed Sh. Sameer Chandra, Advocate as Local Commissioner, to ascertain as to what portion of the disputed property is being used for commercial purposes and to report about the persons who are occupying and running commercial activities in the suit portion.
The Legal Commissioner Sh. Sameer Chandra has filed his report dated 06.04.2004. Ex. No. 266/06 1 He found that Sh. Ranjeet Singh the defendant was running commercial activities in the form of vegetable and general store shop. He has also taken the photographs showing the shops being run in this disputed property. Therefore, as per the report of Legal Commissioner some portion of the property in respect of which a request is made for attachment is being used for commercial purposes. The report was considered and on 23.09.2005 immovable property i.e House No. U406, PartI, New Jag Mandir, Nagloi, Delhi 41 was attached in the execution of present decree execution and the notice of the attachment was directed to be affixed at some conspicuous part of the suit premises.
Later on third party objector has filed objection to his execution alleging himself to be the owner of the property .He is the brother of the judgment debtor. Those objections are under consideration.
I have heard counsel for decree holder and Judgment Debtor .
The third party objector Sh. Bharat Singh, who has filed the present objection is the real brother of Judgment Debtor. He has filed these objection alleging that he came to know about the pendency of this execution when the order of attachment was made.
It is alleged that the objector alongwith his brother Sh. Ram Singh has purchased House No. U406, Plot No. 31 measuring 100 Sq. Yards out of Khasra No. 11491150 constituted in village Kirari, Suleman Nagar known as Prem Nagar from their elder brother Sh. Ranjeet Singh after paying the consideration of Rs. 1 lac on 22.02.1996 in the name of the objector, his brother Sh. Ram Singh and his nephew. When the Judgment Debtor has sold the property under attachment to the objector, he is left with no right title or interest in the property and, therefore, this property shall be exempted from attachment.
It is also alleged that the family of the objector as well as his brother Sh. Ram Singh have been residing in property in question, being lawful owner of the same and his nephew is Ex. No. 266/06 2 running two shops of vegetable and general stores respectively in the said property. It is alleged that the Judgment Debtor is trying to recover the decreetal amount in this case by the attachment of this property which belongs to the objector.
The objector has claimed himself to be the owner of the property in question. The documents of ownership has been filed by him. These documents are a general Power of Attorney, Agreement to Sell and Affidavit which are in favour of Sh. Bharat Singh ,his brother Sh. Ram Singh and Sh. Deepak Singh (minor). It is alleged that the property has been transfered by the virtue of these documents. It is alleged that Judgment Debtor has sold his property to all the three person and he is not left with any interest in the property. A photocopy of Electricity Bill is also filed.
As far as this bill is concerned , it is very old bill of December 2007 which could not be relied upon to arrive at a conclusion that the objector is the owner of the property under attachment.
The documents on which the objector has relied are also not sufficient to transfer any immovable property in view of Section 17 of the Indian Registration Act and Section 54 of the Transfer of Property Act. In the case of Imtiaz Ali Vs. Nasim Ahmad, AIR 1987 DELHI 36, it was held that nobody can call himself as owner of any immovable property by purchase on the basis of agreement to sell and power of attorney executed by the alleged vendor in favour of the prospective purchasecumattorney in the absence of a registered sale deed. Where no registered sale deed was executed in favour of vendee by the alleged vendor, the he could not be said to be the owner of the immovable property under the agreement to sell or general power of attorney executed in his favour by such alleged vendor.
Any property whose value is more than Rs. 100 can be transfered only by virtue of registered Sale Deed. Although in Delhi due to certain restrictions people use to transfer their Ex. No. 266/06 3 property by way of Power of Attorney, Sale Deed, but this Power of Attorney etc are for consideration and are registered documents. The documents filed by the objector are neither registered nor the General Power of Attorney shows any kind of consideration paid for the transfer of the property. Judgment Debtor has also appointed one minor person Sh. Deepak, his nephew as is attorney, which is not permissible under law.
Objector is the brother of Judgment Debtor and he has stated that he has purchased the property from Judgment Debtor which means that he admits the Judgment Debtor to be be the owner of the property under attachment. It is also alleged by him that Judgment Debtor has sold the property to the objector but the documents did not have the potential to transfer immovable property . The objector therefore has admitted his brother ie. The judgment debtor as the owner of the property in question by saying that he has purchased it from the JD, but considering the fact that the ownership documents in his favour are ineffective , the objections filed by him appears to be devoid of any substance and are filed just to delay and divert the the proceedings of this execution. The objector failed to establish any right in the property under attachment and therefore his objections are liable to be dismissed.
In case of Rocky Tyres Vs. Ajit Jain AIR 1998 P&H 202 it was held that:
"It is settled principle of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in execution proceedings even if prima facie they appears to be frivolous and vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of law."
Therefore, on the basis of aforesaid discussions, the objections filed by the brother of the judgment debtor Sh. Bharat Singh are dismissed.
Announced in the open Court (SAMAR VISHAL)
On 09.07.2010 Civil Judge02 (North)/Delhi
09.07.2010
Ex. No. 266/06 4
09.07.2010 Ex. No.266/06
Present: Counsels for judgment debtor and decree holder.
At request, to come up at 12 pm.
(Samar Vishal)
CJ02/North/Delhi.
09.07.2010
File taken up again at 12.00 pm.
Present: Sh. Vinod Kumar proxy Counsel for the judgment debtor .
Sh. Nitin Kumar counsel for decree holder.
Heard, arguments of counsel for both the parties on the objections filed by the third party objector in this case.
To come up for orders at 4 pm. (Samar Vishal) CJ02/North/Delhi.
09.07.2010 At 4 pm. Vide separate order, the objections filed by the third party objector are dismissed. Decree holder has also filed an application u/S 340 Cr.PC. It be checked and registered separately as a miscellaneous case.
To come up for further proceedings on 13.8.2010.
(Samar Vishal) CJ02/North/Delhi.
09.07.2010 Ex. No. 266/06 5