Punjab-Haryana High Court
Rajinder Kaur And Others vs Kashmira Singh And Others on 25 November, 2009
Author: Hemant Gupta
Bench: Hemant Gupta
Civil Revision No. 3693 of 2004 [1]
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 25-11-2009
(i) Civil Revision No. 3693 of 2004
Rajinder Kaur and others ......Petitioners
Versus
Kashmira Singh and others ....Respondents.
(ii) Civil Revision No. 255 of 2007
Rajinder Kaur and others ......Petitioners
Versus
Central Bank of India and another ....Respondents.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri R.C. Setia, Senior Advocate, with
Shri Anish Setia, Advocate, for the respondent.
Shri B.S. Guliani, Advocate,
for respondent for respondent No.1.
Shri I.P. Singh, Advocate, for respondent No.2.
HEMANT GUPTA, J. (Oral).
This order shall dispose of Civil Revision No. 3693 of 2004, impugning the orders dated 24.4.2004, whereby sale certificate Civil Revision No. 3693 of 2004 [2] has been issued and 8.6.2004, issuing warrants of possession in pursuance of sale certificate and Civil Revision No. 255 of 2007, challenging the order passed by the learned Executing Court on 6.3.1999 and order in appeal dated 13.1.2006, whereby objections under Order 21 Rule 90 of the Code of Civil Procedure, were dismissed.
In Civil Suit No. 266 of 1990, a decree for recovery of Rs.2,71,553/- along with interest, was granted in favour of the decree holder i.e. Central Bank of India, on 23.9.1991. In execution filed in the year 1992, initially, tractor No. PJN 2931 was sold. The learned Executing Court passed an order on 30.5.1992, whereby the objections filed by the present petitioners against the attachment of the said truck, were dismissed and aforesaid truck was ordered to be sold. The decree holder was also directed to file list of property of Balbir Singh, husband and father of the present petitioners. On 30.7.1992, a report was received in respect of the sale of the truck and the Court issued warrants of attachment of the land of the Judgment Debtors. Since the warrants were not executed, on 10.10.1992, fresh warrants of attachment of the land of the Judgment Debtors were ordered to be issued. On 30.1.1993, when the Presiding Officer was on leave, the Reader of the Court has recorded the following order on the order sheet:-
"The Presiding Officer is on leave. Warrant of attachment is received back duly executed. Notice to the JD be issued for 27.3.1993 on filing of Civil Revision No. 3693 of 2004 [3] application under Order 21 Rule 66 CPC on PF."
On the next date i.e. 27.3.1993, the Presiding Officer passed the following order:-
"Notice not received back. Notice be again issued for 8.5.1993 on old PF."
Another order was passed on the same date to the following effect:-
"At this stage, notice received back with the report of refusal by the JD Nos. 1 to 3. Hence they are proceeded against ex-parte. Let the sale warrant be issued as under:-
Notice - 15.4.93 Spot - 23.4.93 Auction- 27.5.93 Report- 5.6.1993 Sale charges be deposited within two days."
Thereafter, one set of objections were filed by Randhir Singh son of Mukhtiar Singh on the ground that the Judgment Debtor Nos. 1 to 3, are not the absolute owners of the property as the applicant constructed the house on the joint land. Said objections, accompanied by the affidavit dated 8.5.1993, were dismissed by the Executing Court on 21.5.1993.
Record further shows that another set of objections was filed by the present petitioners on 27.5.1993 along with an affidavit of even date of Baljinder Singh, in respect of the attachment of the property. It was pointed out that no valid attachment of the property has been effected and no valid notice has been given regarding sale of Civil Revision No. 3693 of 2004 [4] property measuring 1 kanal 19 marlas.
The objections filed by Randhir Singh on 10.5.1993, were dismissed by the learned Executing Court on 21.5.1993. The objections were in respect of the attachment notice under order 21 Rule 66 of the Code of Civil Procedure. Randhir Singh also moved an application dated 9.9.1994 on 12.9.1994 and another application on 17.9.1994 for stay of the execution. The said applications were declined by the learned Executing Court on 19.9.1994.
The petitioners filed objections on 27.5.1993 pointing out that no notice of attachment has been served upon the Judgment Debtors and that in the property measuring 1 kanal 19 marlas, there is a residential house of Randhir Singh, who has raised construction over the property by spending more than Rs.5 lacs and that the objectors are in possession of the room on the rear side of the residential house, on the intervention of the relatives of the objectors. It was asserted that it was the only residential house owned and possessed by the objectors. It was asserted that though Randhir Singh is recorded owner of ½ share in the revenue record, but he is owner of the whole residential house on the spot. The said objections were dismissed by the Executing Court on 21.8.1993, when the following order was passed:-
"In this case objections have been filed that some construction is made on the property to be sold whereas a perusal of jamabandi shows that there is only one `Bara' and there is no document on the file showing that there is any residential house on the property to be sold. Hence the vacant site is Civil Revision No. 3693 of 2004 [5] ordered to be sold. Objections are hereby dismissed. To come for notice on court door on 28.8.1993, Munadi on 4.9.93, auction on 20.9.93 and report on 25.9.93."
Thereafter, another set of objections was filed by the petitioner bearing Misc. Application No. 4 of 10.9.1994 under Section 40 read with Section 60 of the Code of Civil Procedure. The petitioners have sought stay of the auction on the ground that a residential house is constructed on the land in dispute as in the Jamabandi, the same is described as `Gair Mumkin Makan'. It was also pleaded that the petitioners are having Ration Card and Voter Cards of the said house. Electric connection is installed in the name of Gurjit Singh; telephone connection is installed in the name of Balbir Singh and that the property is a residential house, wherein petitioner No. 1 along with her minor children is residing. The said house cannot be attached and sold in execution of the decree. In the said objections, a prayer was made for stay of auction of the residential house fixed for 8.11.1994. The said application was decided by the learned Executing Court on 7.11.1994. It was found that the objections raised by the petitioners have been dismissed on 21.8.1993 and no appeal or revision has been preferred against the said order. It was also found that there is no documentary proof that the petitioners are the agriculturists or labourers or domestic servants, so as to seek exemption under Section 60(c) of the Code of Civil Procedure.
Though, there is some dispute regarding challenge to the Civil Revision No. 3693 of 2004 [6] order dated 7.11.1994 in appeal by the appellants, but it is undisputed that the order dated 7.11.1994 has not been set aside or modified in appeal.
The property was put to sale on 9.11.1994 and one Kashmira Singh was found to be the highest bidder. The sale in his favour was confirmed on 11.5.1999 after the objections filed by the petitioner were dismissed vide order dated 6.3.1999. The appeal against the dismissal of the said objections under Order 21 Rule 90 of the Code of Civil Procedure has also been dismissed and still aggrieved, the petitioners are in revision.
The learned Executing Court has passed an order issuing the sale certificate on 24.4.2003 and also issued warrants of possession on 8.6.2004 as the sale stood confirmed.
In the order impugned in the Civil Revision No. 255 of 2006, the learned Executing Court has found that the objections regarding attachment of the land were raised and decided by the Executing Court on 7.11.1994, therefore, such objections are not available under Order 21 Rule 90 of the Code of Civil Procedure.
Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in Desh Bandhu Gupta v. N.L. Anand & Rajinder Singh, (1994)1 Supreme Court Cases 131, to contend that any irregularity in the order of attachment, can be made basis to challenge the sale in terms of order 21 Rule 90 of the Code of Civil Procedure. It is also argued that notice under Order 21 Rule 66 of Civil Revision No. 3693 of 2004 [7] the Code of Civil Procedure was not issued by the Presiding Officer, but by the Reader of the Court and, therefore, the sale conducted on the basis of such attachment is illegal. It is also without any notice to the Judgment Debtors and therefore, not sustainable.
I do not find any merit in the argument raised by the learned counsel for the petitioners. It is a case where the petitioners have filed objections alleging irregularities and illegalities in the process of attachment and in the process of proclamation of sale under Order 21 Rule 66 of the Code of Civil Procedure. Such objections were declined by the Executing Court on 7.11.1994. Once the Executing Court has passed an order, such order will operate as resjudicata in terms of Section 11 Explanation VIII of the Code of Civil Procedure. In view of the said fact, the petitioners cannot be permitted to re-agitate the issues raised by the petitioners in their objections petition decided by the Executing Court on 7.11.1994.
The argument that the Reader of the Court has in fact issued a notice for settling the terms of sale, does not warrant any interference. Though the order dated 30.1.1993 has been passed by the Reader, but the fact remains that on the next date, the Presiding Officer has issued fresh notice. Therefore, any irregularity in the proceedings stood cured with the order passed by the Presiding Officer.
Another argument dealt with by the Executing Court was in respect of the sale of a residential house. The said argument is not tenable for more than one reasons. Firstly, it is the case of the Civil Revision No. 3693 of 2004 [8] petitioners that the house belongs to Randhir Singh. Randhir Singh has not challenged the order, whereby his objections were dismissed. Secondly, the protection under Section 60(ccc) of the Code of Civil Procedure, in respect of the sale of sole residential house is available to the Judgment Debtor and not to the legal heirs. Such is the view taken by this Court in K.L. Bawa v. Basant Textiles, 1982 PLR 258 and Sheela v. The Punjab and Sind Bank Ltd., 1994(1) PLR 583. The argument raised by the learned counsel for the petitioners is that in fact, the said judgments are not applicable in the present case as the petitioners are not the legal heirs of the Judgment Debtor, but the Judgment Debtors themselves. Such argument is without any substance. The suit for recovery was filed against the petitioners in the capacity of legal heirs of Balbir Singh. The decree against the petitioners is executable only to the extent of assets inherited by them as heirs of Balbir Singh. Therefore, the ratio of the aforesaid judgment is applicable in the present case.
In view of the above, I do not find any patent illegality or material irregularity in the impugned orders, which may warrant interference by this Court in exercise of its revisional jurisdiction.
Hence, both the revision petitions are dismissed.
[ HEMANT GUPTA ] JUDGE November 25, 2009 ds