Punjab-Haryana High Court
Surender vs M/S Soami Traders (India) & Anr on 4 December, 2014
CR No. 155 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CR No. 155 of 2014
Date of Decision : 04.12.2014
Surender ...Petitioner
Versus
M/s Soami Traders (India) and another ...Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the 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: Mr. Chiranji Lal, Advocate
for the petitioner.
Mr. Jagdish Manchanda, Advocate
for respondent no. 1.
Mr. Vimal Singh, Advocate
for Mr. Sandeep Lather, Advocate
for respondent no. 2.
R.P. Nagrath, J.
The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India seeking to set aside the order dated 16.11.2013 (Annexure P-5), passed by the executing court and for not directing the release of property of the petitioner from attachment.
2. Respondent no. 1 obtained the decree for recovery of an amount of ` 3,18,499/- against respondent no. 2, father of the petitioner. Copy of the judgment in suit No. 30 of 2009 instituted by respondent no. 1 on 12.05.2008 is Annexure P-1. The decree was passed on 05.10.2011 and it was also directed that over the decretal JITENDER KUMAR 2014.12.24 10:46 I attest to the accuracy and authenticity of this document Chandigarh CR No. 155 of 2014 -2- amount respondent no. 1-decree-holder would be entitled to interest @ 12% per annum w.e.f. 01.11.2005 till its realization. Annexure P-2 is the copy of execution application filed before the executing court wherein the amount outstanding under the decree for which the recovery was sought by attachment or sale of the property of respondent no. 2-judgment-debtor, was ` 5,47,820/-. The execution application is dated 07.12.2011.
3. Pursuant thereto, the revenue authorities attached the property measuring 73 kanals 4 marlas as per jamabandi for the year 2009-2010. As per report of the revenue authorities dated 21.02.2012 (Annexure P-3), 37 kanals 13 marlas of the land was transferred out of 73 kanals 4 marlas in favour of the petitioner, the son of decree-holder, vide mutation no. 1802. It was further reported that 35 kanals 11 marlas of the land standing in the name of Bhalla Ram judgment- debtor and 37 kanals 13 marlas standing in the name of petitioner was attached.
4. The petitioner-objector filed an objection petition before the executing court praying for release of attachment of the land which was entered in his name as per mutation. It was also stated that the decree can be satisfied by attachment and sale of the property of respondent no. 2-judgment-debtor measuring 2 kanals as market rate of the land in the village is not less than 35 lacs per acre. It was further stated that no notice of attachment was issued to the petitioner- objector.
5. Learned counsel for the petitioner, vehemently, contended JITENDER KUMAR 2014.12.24 10:46 I attest to the accuracy and authenticity of this document Chandigarh CR No. 155 of 2014 -3- that executing court has passed the impugned order dated 16.11.2013 (Annexure P-5) without calling for reply of the decree-holder and also without framing issues on the objections raised by the petitioner. It was further contended that learned trial Court has not formed an opinion as to how much land is sufficient to satisfy the decree which is mandatory requirement.
6. I have heard learned counsel for the petitioner, counsel for respondent no. 1 and counsel appearing for respondent no. 2, perused the impugned order and the paper-book.
7. The counsel for the petitioner-objector made a statement before the executing court that so much land of the judgment-debtor be auctioned which is necessary to satisfy the decree and accordingly it was directed vide the impugned order that the sale of so much of the property of judgment-debtor, which has been attached, is necessary to satisfy the decree, be put to auction as per the schedule mentioned in the impugned order.
8. The learned counsel for the petitioner further submitted that the executing court has not passed any specific order releasing the land of the objector from attachment. I am of the considered view that petitioner-objector has not been able to show on what basis the mutation (Annexure P-6) of the land was entered and sanctioned in his favour. Mutation entry shows that it was entered on 04.11.2011 on the strength of dastbardari. Learned counsel for the petitioner submitted that the petitioner is unable to produce the document of transfer executed in his favour by respondent no. 2- JITENDER KUMAR 2014.12.24 10:46 I attest to the accuracy and authenticity of this document Chandigarh CR No. 155 of 2014 -4- judgment-debtor on the basis of which this mutation was entered. Anyhow, there is no need to enter into a detailed controversy on this subject as transfer of the immovable property is required to be by a registered instrument which was not even the case of the petitioner set up in the objections. It would be significant to note that suit was decreed for recovery by the trial Court on 05.10.2011 and mutation (Annexure P-2) is entered on 04.11.2011.
9. It was in fact for the judgment-debtor himself to apply to the executing court that out of the total land attached, the executing court should specify the exact area of land as would be necessary to satisfy the decree and also to assess tentative price thereof while putting the land to auction. Even otherwise the executing court is bound to make the aforesaid compliance before proceeding further while putting the attached land to auction. The executing court has not in fact mentioned in the impugned order as to how much area of the land attached is being put to auction and what is the probable price of the land for which the order of auction is being passed.
10. Order XXI Rule 64 of the Code of Civil Procedure reads as under:-
"64. Power to Order property attached to be sold and proceeds to be paid to person entitled - Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such JITENDER KUMAR 2014.12.24 10:46 I attest to the accuracy and authenticity of this document Chandigarh CR No. 155 of 2014 -5- sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same."
11. In Ambati Narasayya vs. M. Subba Rao and another, AIR 1990 SC 119 (1), the principle question was whether the sale of 10 acres of the land without considering whether a portion of the land could have been sold to satisfy the decree, Hon'ble Supreme Court held as under:-
"7. It is of importance to note from this provision that in all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This, in our opinion, is not just a discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the JITENDER KUMAR 2014.12.24 10:46 I attest to the accuracy and authenticity of this document Chandigarh CR No. 155 of 2014 -6- claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction."
12. Therefore, I am of the view that duty is cast upon the executing court but the petitioner is not shown to have locus standi to challenge the execution proceedings. The executing court has to decide the aforesaid question before putting the land to auction and may be in that event proceed with the sale of the land which is presently standing in the name of respondent no. 2-judgment-debtor.
13. In Vannarakkal Kallalathil Sreedharan vs. Chandramaath Balakrishnana and another, (1990) 3 SCC 291, relied upon by the petitioner, the question was absolutely different. In that case, there was an agreement to sell in favour of appellant before the Hon'ble Supreme Court prior to attachment, and the sale deed was executed subsequent to that. It was held that the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor.
14. Entry of mutation at the instance of decree-holder who is father of the petitioner cannot be of any significance unless there is any prima facie document to support the mutation like registered document of transfer or some decree passed on a consent in his favour by the respondent no. 2-judgment-debtor.
15. With the aforesaid observations regarding the duty cast upon the executing court while putting the attached land to auction for JITENDER KUMAR 2014.12.24 10:46 I attest to the accuracy and authenticity of this document Chandigarh CR No. 155 of 2014 -7- proceeding further in the matter, the instant petition filed by the petitioner-objector is dismissed with liberty to the petitioner to file a fresh application before the executing court for release of the land entered in his favour and by supporting his contention of owning the land on the basis of a valid deed of transfer and not simply to rely on mutation. On moving such application the executing court shall proceed to dispose of the same in accordance with law. But the executing court would, however, proceed further with the auction of attached land keeping in view the observations made while disposing of the instant petition.
December 04, 2014 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2014.12.24 10:46
I attest to the accuracy and
authenticity of this document
Chandigarh