Punjab-Haryana High Court
Radhika Kaushik vs National Small Industries Corp Ltd And ... on 14 October, 2025
7 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
EFA-COM
COM-1-2025 (O&M)
Date of Decision: 14.10.2025
Radhika Kaushik ...Appellant
Vs.
National Small Industries Corporation Ltd. and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ASHWANI KUMAR MISHRA
HON'BLE MR. JUSTICE ROHIT KAPOOR
Present: Mr. Munish Kumar Garg, Advocate and
Mr. Tanuj Goyal Tohana, Advocate,
Mr. Mudit Gupta, Advocate for the appellant.
Mr. Sanjay Sharma Darmora, Advocate and
Mr. Y.P. Uniyal, Advocate for the respondent No.1.
***
ASHWANI KUMAR MISHRA,
MISHRA J. (Oral)
1. This appeal arises out of an order dated 05.09.2025, passed by the Exclusive Commercial Court at Gurugram, exercising jurisdiction under the Commercial Courts Act, 2015, whereby the application filed by the appellant under Order XXI Rule 58 read with Section 151 of Code of Civil Procedure 1908 (for short 'the CPC'), CPC'), praying for recall of attachment order dated 13.08.2025, been dismissed.
2. The brief background of the controversy ggiving iving rise to filing of the present appeal would be apposite, at this stage:
stage:-
2.1 Respondent No.1/Decree Decree-Holder older instituted civil suit No.CS(OS) No.2613 N of 2000, against eight defendants for recovery of an amount of Rs.9,84,07,792/ Rs.9,84,07,792/- along with interest.
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2.2 During the pendency of the suit, a settlement was arrived
at between the respondent No.1 (plaintiff/decree-holder) and defendants No.1 to 3 (respondents No.2 to 4 herein), who are the judgments debtors. Pursuant thereto, an application under Order 23 Rule 3 read with Section 151 CPC, was filed jointly by the parties for getting the suit decided in terms of the compromise arrived at between the parties.
2.3 The suit was tried by the Delhi High Court, wherein, an order came to be passed on 04.09.2012, recording that decree-
holder and judgment-debtors had arrived at a settlement, according to which, the judgment debtor No.1 M/s Equipment Conductors & Cables Limited (for short 'the company') had agreed to pay a sum of Rs.8,55,00,000/- along with interest @ 11.25% per annum w.e.f. 19.05.2012 towards full and final settlement of claim of plaintiff in the suit.
2.4 Defendant No.1 had paid an amount of Rs.6.5 Crores and balance amount of Rs.2.05 Crores along with interest @ 11.25% was to be paid on or before 31.12.2012.
2.5 Judgment debtors No.2 to 4 had also agreed that in the event of non-payment of full settlement of amount along with interest in terms of the settlement agreement, the entire suit amount along with interest and cost shall become payable by them.
2.6 Admittedly, the full and final amount as per compromise decree was not paid by the judgment debtors resulting in the filing of the execution petition. Thereafter, the decree drawn by 2 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [3] the Delhi High Court was transferred for its execution to the Court of District Judge, Gurugram, vide communication dated 18.03.2014.
3. Subject matter of dispute in the execution petition is an immovable property bearing Municipal No.A-30/9, DLF Phase-1, Qutab Enclave, Gurugram. This property was acquired by Alok Sharma and Anil Sharma, vide sale deed dated 29.12.2012. The property was not classified as HUF Property and open/un-built plot was mortgaged and pledged as security by Alok Sharma in return for securing raw material assistance from National Small Industries Corporation (for short 'NSIC')/plaintiff/decree-holder, to operate the business of the company. It is the case of the decree-holder that the mortgagees raised construction on this open piece of land allegedly without the prior approval or knowledge of the NSIC and planted their family members as occupiers of the mortgaged property, under the guise of HUF.
4. The compromise decree has been passed against three judgment debtors in terms of settlement arrived at between the parties and whereafter execution petition has also been filed against those judgment debtors only. These judgment debtors are : (i) M/s Equipment Conductors and Cables Ltd., (ii) Mr. Alok Sharma, Managing Director and (iii) Alok Sharma and Sons (HUF) through its Karta namely Alok Sharma. It transpires that objections were filed on behalf of the judgment debtors and other objectors jointly or separately on various dates. These objections included objections filed by Shri Alok Sharma as also his son, Siddharth Sharma primarily on the ground that no partition of the HUF Property in question has taken place and, therefore, the proceedings in execution against said HUF property, were legally impermissible. These objections came to be considered 3 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [4] and decided by the Executing Court vide order dated 13.08.2025. Specific issue with regard to impermissibility of execution petition in respect of property on account of it being unpartitioned HUF property came to be rejected by the Executing Court while observing as under:-
"23. Nextly, the judgment debtors have objected to attachment of joint HUF properties without consent of the coparceners and the same was necessary. However, the karta of a HUF can deal with the HUF property and the other coparceners can take action against the karta of the HUF but they have no individual right to raise any objections against the property of the HUF as per actions taken by karta of HUF to deal with the said property. Once the HUF property was mortgaged or given as security by the HUF who is also judgment debtor no. 3 through its karta who is also judgment debtor no. 2 by deposit of title deeds, the judgment debtors or any other person cannot challenge the same in execution proceedings by raising objections that the said property was a residential property and the same could not have been attached. In any case, as per the documents on file at the time title document of the property was given to the decree holder while taking loan and as per report got prepared by the judgment debtors, copy of which is on the case file, the HUF property was in the form of a plot and not a residential house. In this factual matrix, no benefit of Section 60(ccc) of the CPC can be given to the judgment debtors and similarly, no benefit of judgment passed by Hon'ble Delhi High Court in V.P. Arora Versus Punjab National Bank (supra) can
4 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [5] be given. So this argument advanced on behalf of judgment debtors and objector also cannot be accepted.
24. It has also been argued by learned counsel for objector that un-partitioned property cannot be attached or sold as proper description of the same under Order XXI Rule 13 CPC to identify the same cannot be provided. However, in Order XXI Rule 13(b) CPC itself, it is mentioned that the share of interest of judgment debtor in the property sought to be attached can be mentioned for its identification purpose. The attached property of judgment debtor no. 3 is properly identified with a specific number to identify the same in which judgment debtor no.3 is having half share. So there is no dispute regarding identification of the property and thus this objection raised on behalf of judgment debtors and objector also cannot be accepted.
25. It has already been discussed above that while transferring the execution petition to Gurugram, Hon'ble High Court of Delhi had also forwarded the Certificate of Transfer of decree and order dated 20.01.2014 passed by the Hon'ble High Court which is on the court file. So this objection raised on behalf of judgment debtors cannot be accepted."
5. It is thereafter that an application has been filed by applicant/third party objector Ms. Radhika Kaushik daughter of Shri Alok Sharma, with a prayer to recall of attachment order dated 13.08.2025. The concerned Court has taken note of the facts of the case and has rejected the objections filed by the appellant, while holding as under:-
5 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [6] "9. The only objections raised in the present application are relating to non partitioning of the aforesaid property and the attachment was without the consent of other coparceners which was necessary. The judgment debtors had objected to attachment of joint HUF property without consent of the coparceners as the same was necessary. However, the karta of a HUF can deal with the HUF property and the other coparceners can take action against the karta of the HUF but they have no individual right to raise any objections against the property of the HUF as per actions taken by karta of HUF to deal with the said property.
10. The other objection raised regarding proceeding against the attached HUF property in the present execution petition being illegal is that only judgment debtor no. 1 was liable and so the liability of judgment debtor no. 1 cannot be satisfied by attachment and sale of the HUF property. However this argument of learned counsel for objector also cannot be accepted. Admittedly, when the judgment by way of compromise was passed by the Hon'ble Delhi High Court, the compromise was arrived at by three of the defendants, namely, M/s Equipment Conductors & Cables Ltd. judgment debtor no.1, Shri Alok Sharma, Managing Director of M/s Equipment Conductors & Cables Ltd. as defendant no. 2 and the defendant M/s Alok Sharma & Sons (HUF) as defendant/judgment debtor no. 3. Once decree is passed against the HUF Alok Sharma &
6 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [7] Sons also, this objection raised by the objector cannot be accepted."
6. Thus aggrieved by rejection of the objections, the appellant is before this Court.
7. From the facts placed on record, it is apparent that the appellant is not the judgment-debtor and has objected to the proceedings of execution primarily on the ground that the property in question is un-divided HUF and the appellant is a coparcener and without partitioned or legal necessity such property cannot be proceeded with in execution.
8. The appeal is resisted by the counsel for respondent No.1/caveator, contending that law is settled that Karta of Joint Hindu Family can dispose of Joint Hindu Family Property involving the undivided interest of coparceners. It is also settled that coparcenrs cannot seek an injunction restraining the Karta from alienating the Joint Hindu Family Property but has a right to challenge alienation in independent proceedings. It is, therefore, submitted that filing of objection by the appellant is legally unsustainable and has rightly been dismissed by the Executing Court.
9. Having heard learned counsel for the parties, we find that the property in question was mortgaged by deposit of title deed in favour of decree-holder by Shri Alok Sharma, who happens to be the Managing Director of the Company as also the father of the appellant. Mortgage was created on account of finance availed by the company for running its affairs. It is undisputed that there was a default in repayment of loan amount which led to filing of suit before the Delhi High Court by the decree-holder/NSIC. The suit was ultimately decreed in terms of the compromise. The compromise decree is not under challenge. It is further undisputed that in 7 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [8] terms of the compromise, the due amount has not been paid by the judgment debtors which led to filing of execution. Since the mortgaged property is situated in District Gurugram, as such, the execution petition has been transferred to the concerned Court at Gurugram. It is in these proceedings of execution that orders have been passed by the Executing Court rejecting the objections of the appellant.
10. Availing of finance by Alok Sharma, Managing Director of the Company, who also happens to be the Karta of HUF and its default in repayment are admitted. Objections in execution petition have been filed by the son and daughter of Karta, Alok Sharma, who also happens to the Managing Director of the Company. The limited question for consideration is as to whether the coparcener has any right to object to the alienation by the Karta Khandan or not.
11. The Hon'ble Supreme Court in M.R. Vinoda vs. M.S. Susheelamma (D) by L.Rs. and others, Civil Appeal No.2567 of 2017, decided on 13.12.2020, has extensively examined the aforesaid issue. Law on the subject has been crystallized in para No.13 and 20 of the judgment, which reads as under:-
"13. Thus, a Karta of a joint Hindu family can dispose of joint family property involving the undivided interest of the minor of the family therein. Therefore the proposition of the Plaintiff No. 3/ the Appellant on the limitation of the power of the Karta to manage and sell the joint Hindu family property on behalf of the joint family comprising of a minor is misplaced, as a coparcener has no right to interfere in the act of management of the joint family affairs. [Sunil Kumar and Another v. Ram Parkash and Others, (1988) 2 SCC 77.] This being the position, a coparcener cannot seek an injunction restraining the Karta from alienating 8 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [9] joint Hindu family property, but has a right to challenge aliena- tion, as the alienation is not beyond the scope of challenge by other members of the joint family, and thereby scrutiny of the court. Latter right entails the right to claim a share in the joint family estate free from unnecessary and unwanted encum- brances, whereas the former embraces the right to interfere with the act of management of the joint family affairs. We shall sub- sequently examine the grounds and circumstances in which alie- nation can be challenged
20. Read in this light, it can be validly argued that the relin- quishment deed dated 13th March 1969, Exhibit P-2, executed by the fourth defendant would be invalid. However, in the present case, other aspects have to be noticed to decide the re- linquishment deed's validity. First, we must again refer to the superior power that the Karta enjoys and, consequently, his greater rights and duties than other members. A Karta can alienate the property when other coparceners have given con- sent. It is also settled that a Karta may alienate the joint family property for value, either for legal necessity or for the benefit of the estate, to bind the interests of all the undivided members of the family, whether they are adults or minors or widows. There are no specific grounds to prove the existence of legal necessity and it must therefore depend on the facts of each case. A Karta has wide discretion in the decision over the existence of legal necessity and as to in what way such legal necessity can be ful- filled. However, it is observed this exercise of power and rights by Karta is not beyond challenge on the limited ground of lack of existence of legal necessity or absence of benefit to the es- tate."
12. Recently, the Hon'ble Supreme Court in Dastagirsab vs. Sharanappa @ Shivasharanappa Police Patil (D) by LRs. & Ors, Civil Appeal No.(s) 5340/2017, decided on 16.09.2025, held that Karta of Joint 9 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [10] Hindu Family has wide discretion to sell Joint Hindu Family Property. The relevant observations made in Dastagirsab case (supra) reads as under:-
11. Right of a Karta to sell joint family property is well settled.
Karta enjoys wide discretion with regard to existence of legal necessity and in what way such necessity can be fulfilled. Whether legal necessity existed justifying the sale would depend on facts of each case. In Beereddy Dasaratharami Reddy vs. V. Manjunath & Anr.10, this Court succinctly elucidated:
6. Right of the Karta to execute agreement to sell or sale deed of a joint Hindu family property is settled and is beyond cavil vide several judgments of this Court including Sri Narayan Bal v.
Sridhar Sutar (1996) 8 SCC 54] , wherein it has been held that a joint Hindu family is capable of acting through its Karta or adult member of the family in management of the joint Hindu family property. A coparcener who has right to claim a share in the joint Hindu family estate cannot seek injunction against the Karta restraining him from dealing with or entering into a transaction from sale of the joint Hindu family property, albeit post alienation has a right to challenge the alienation if the same is not for legal necessity or for betterment of the estate. Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows. There are no specific grounds that establish the existence of legal necessity and the existence of legal necessity depends upon facts of each case. The Karta enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the Karta on fulfilling the requirement of legal necessity or betterment of the estate is valid and binding on other coparceners.
7. Elucidating the position in Hindu law, this Court in Kehar Singh v. Nachittar Kaur (2018) 14 SCC 445 has referred to 10 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [11] Mulla on Hindu Law and the concept of legal necessity to observe thus: (SCC pp. 449-51, paras 20-21 & 26) "20. Mulla in his classic work Hindu Law while dealing with the right of a father to alienate any ancestral property said in Article 254, which reads as under:
'Article 254
254. Alienation by father.--A Hindu father as such has special powers of alienating coparcenary property, which no other coparcener has. In the exercise of these powers he may:
(1) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of ancestral immovable property to the extent mentioned in Article 224; (2) sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great-
grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Article 294).'
21. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under:
Article 241
241. What is legal necessity.--The following have been held to be family necessities within the meaning of Article 240:
(a) payment of government revenue and of debts which are payable out of the family property;
(b) maintenance of coparceners and of the members of their families;
(c) marriage expenses of male coparceners, and of the daughters of coparceners;
(d) performance of the necessary funeral or family ceremonies;
(e) costs of necessary litigation in recovering or preserving the estate;
(f) costs of defending the head of the joint family or any other member against a serious criminal charge;
(g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, 11 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [12] it is not enough to show merely that the debt is a pre-existing debt;
The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity.' (See Hindu Law by Mulla "22nd Edition".)
26. Once the factum of existence of legal necessity stood proved, then, in our view, no co-coparcener (son) has a right to challenge the sale made by the karta of his family. The plaintiff being a son was one of the co-coparceners along with his father Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all."
13. In the facts of present case, it remains undisputed that Karta, Alok Sharma, was the Managing Director of the Company which had availed finance for its business affairs. The property was mortgaged in favour of the decree-holder and there has been a subsequent default in repayment of loan. Once that be so, we find no substance in the challenge laid to the order of the Executing Court rejecting the objections of the appellant in view of the settled law that a coparcener cannot claim injunction against alienation made by Karta of HUF. On facts, it is otherwise apparent that the loan had been availed for the benefit of company of which the appellant's father was the 12 of 13 ::: Downloaded on - 09-11-2025 16:25:04 ::: EFA-COM-1-2025 (O&M) [13] Managing Director. Despite a compromise decree passed, the judgment debtors have not cleared the dues. Nearly thirteen years have expired since the passing of the compromise decree. Filing of repeated objections at the instance of family members, otherwise, appears to be a case of gross abuse and is a desperate attempt on the part of Karta to avoid repayment of loan by raising claims at the instance of his son and daughter.
14. In such circumstances, the order passed by the Executing Court dated 05.09.2025, merits no interference. Consequently, the appeal is dismissed.
15. All pending misc. application(s), if any, also stand disposed of.
(ASHWANI KUMAR MISHRA) JUDGE (ROHIT KAPOOR) JUDGE 14.10.2025 rajesh
1. Whether speaking/reasoned? : Yes/No
2. Whether reportable? : Yes/No 13 of 13 ::: Downloaded on - 09-11-2025 16:25:04 :::