Delhi District Court
Smt. Gian Kaur vs Jetling Rajeshwari Air 2001 A P ... on 12 September, 2007
1
IN THE COURT OF Sh. SANJEEV AGGARWAL
ADLL. SR. CIVIL JUDGE : DELHI.
MCA 132/2006
Smt. Gian Kaur
W/o Late Sh. Mohinder Singh
R/o 17, Rameshwar Nagar,
Azadpur, Delhi33. ...APPELLANT
V e r s u s
M/s. Strength & Support Builders Pvt. Ltd.
Through Sh. Joginder Singh Sethi, Managing Director
35/13, Punjabi Bagh,
New Delhi.
2. Sh. Charanjit Singh
3. Sh. Akbal Singh
Both sons of late Sh. Mohinder Singh ...RESPONDENTS
Date of institution:02.09.2006
Judgment reserved on:11.09.2007
Date of decision:12.09.2007
J U D G M E N T
1 By this judgment, I will dispose off an appeal preferred by the appellant against the impugned order dated 04.08.2006, passed by the ld. Commercial Civil Judge, Delhi whereby the application of the appellant U/O 21 Rule 58 read with Section 151 CPC was dismissed.
22 Brief facts, which are necessary for adjudication of the aforesaid appeal are; it is stated that respondent No. 1 herein had instituted a suit No. 236/99 against respondents No. 2 and 3 and had obtained a decree and judgment against them and had also filed an execution petition against respondents No. 2 and 3 vide execution petition No. 51/01 which is pending before ld. Commercial Civil Judge, Delhi. It is stated that though the decree and judgment was passed against respondents No. 2 and 3 only but even then, the respondent No. 1 had been regularly threatening and harassing the appellant intentionally and deliberately to grab the property of the appellant and respondent No. 1 had visited several times the property of the appellant alongwith warrants of attachment. Therefore, the appellant had filed an application U/O 21 Rules 26 and 5 read with Section 151CPC for staying of the execution and the execution court had decided the said application vide order dated 09.05.2003 in favour of the appellant and had withdrawn the warrants of attachment issued against the property at Azadpur,Delhi.
3. It is stated that further vide order dated 09.05.2003, ld. executing court had issued notices to respondents No. 2 and 3, who were Judgment Debtors, to disclose their assets. However, it is stated that the decree holder did not stop, even after passing of order dated 09.05.2003 and 3 regularly harassed the appellant and had lastly visited the house of the appellant alongwith the bailiff Naresh Kumar on 18.05.2005 with warrants of attachment which were issued against respondents No. 2 and 3, which were obtained by respondent No. 1/DH by misrepresentation and concealment of facts and he illegally took away the household articles of the appellant i.e. one refrigerator, one dining table, five chairs, one center table, one sofa set, one ceiling fan etc. on 18.05.2005 which the decree holder/respondent No. 1 is illegally possessing since then, without any legal right over the same, despite the fact that respondents No. 2 and 3 were not residing at the house of the appellant nor they had any legal right, title or ownership over the said household articles of the appellant. It is further stated that the said refrigerator was purchased in the name of the appellant vide cash memo and other household articles were also purchased by appellant herself and respondents No. 2 and 3 had no concern with the same.
4. The appellant had challenged the impugned order on the following grounds:
a) That the ld. executing court had passed the impugned order without any application of mind;4
b) That the ld. executing court had failed to appreciate, that an order dated 09.05.2003 was passed in favour of the appellant and against the respondents, whereby it was held that the appellant was the owner of the property bearing No. 17, Rameshwar Nagar, Azadpur, Delhi33 and no appeal or revision was preferred against the said order by the respondents and since the appellant was the owner of the said property, therefore, all the household articles lying therein are also owned and possessed by the appellant and this fact was overlooked by the ld. executing court while passing the impugned order;
c) That the ld. executing court had failed to appreciate and take into consideration, that the appellant produced the cash memo of the refrigerator which was wrongly seized by respondent No. 1/DH through bailiff on 18.05.2005 and;
d) That the ld. executing court had also failed to appreciate and take into consideration, that the respondent No. 1/DH did not produce any evidence, documents etc. to prove that the household articles which were seized from the house of appellant were owned and possessed by the respondents No. 2 and 3 and instead the said household articles were seized from the house and possession of the appellant, therefore, the appellant is 5 the owner of the said articles and respondents No. 2 and 3 have no concern with the same. Hence, it is prayed by appellant that the impugned order dated 04.08.2006 be set aside.
5. Reply has been filed on behalf of respondent No. 1 to the appeal stating that the said appeal is without any merit and it is denied that respondent No. 1 had ever threatened or harassed the appellant or had tried to grab the property of the appellant. It is admitted that an application U/O 21 Rule 26 CPC was filed on behalf of the appellant which was disposed of by ld. Commercial Civil Judge vide order dated 09.05.2003, holding that property No. 17 Rameshwar Nagar, Azadpur, Delhi belonged to appellant and the same could not be attached. However, to ensure satisfaction of decree, notice was issued to the judgment debtors ( who are respondents No. 2 and 3 herein) with direction to appear in person and to disclose their assets by way of an affidavit. Therefore, it is stated that respondent No. 1 had no malafide intention and had approached the court for satisfaction of the decree and there was no attempt to attach any property which does not belong to respondents no. 2 and 3. It is stated that the above household articles were attached pursuant to orders of the executing court in accordance with law. It is further stated that as regards the refrigerator, the ld. executing court while 6 dismissing the application of the appellant observed that the photocopy of cash memo filed by the appellant did not bear the name of the purchaser and further, no other document was placed on the record to show that the seized articles belonged to the appellant. Hence, it is stated that the said order has been rightly passed. It is further stated that though the ld. executing court vide order dated 09.05.2003 had observed that the appellant was the owner of the aforesaid property however, no order was passed therein, that the appellant was also the owner of the movable property/articles lying therein. Hence, it is stated that there is no error in the order dated 09.05.2003 and therefore, the appeal preferred by the appellant deserved to be dismissed.
6. I have heard ld. counsel for appellant and ld. counsel for respondent. I have also perused the impugned order dated 04.08.2006 wherein it is held that " 5. I have carefully gone through the case file and it is observed that on 09.05.2003, the Ld. Predecessor of this Court had decided the objections of the applicant regarding the attachment of the property bearing No. 17, Rameshwar Nagar, Azadpur, Delhi and the warrant of attachment against the said property were withdrawn and a notice was issued to the JDs to disclose their assets by way of affidavit but it has been repeatedly reported that the warrant of attachment against the JDs could not be executed without police aid and on 18/05/2005 some articles of the JDs 7 have been seized by the bailiff in compliance of the court orders and thereafter, the present application has been moved.
6. The perusal of the case file and the photocopy of the cash memo filed on record by the counsel for the applicant shows that the cash memo does not bear the name of the purchaser and no other document has been placed on record to show that the articles seized by the bailiff belongs to the applicant. In the circumstances, I do not find any merit in the application and the same is hereby dismissed."
7. Further vide order dated 09.05.2003 the ld. Commercial Civil Judge, Delhi, had withdrawn the warrants of attachment which were issued with regard to property No. 17,Rameshwar Nagar, Azadpur, Delhi, allowing the objections of the present appellant and had observed as under:
"Photocopy of sale deed filed which is in favour of applicant/objector. Ld. counsel for DH also conceded that in view of sale deed in favour of applicant/objector the immovable property belongs to applicant/objector and is not attachable. In view of submission, objections sustained. Property bearing No. 17, Rameshwar Ngr. Azadpur, Delhi belonging to Smt. Gian Kaur be not attached. Warrants of attachment if already directed against this property, stand withdrawn. Objections are disposed of accordingly".
8. The order of ld. trial court dated 04.08.2006 cannot be 8 sustained as it is settled law that " there is nothing wrong to presume that when a person is stated to be in possession of a residential house, he shall be deemed to be in possession of all the movables in relation to the house as well as immovable attachment in the house [Meghraj Gayatri Devi Vs. Jetling Rajeshwari AIR 2001 A P 349(351)]"
9. In view of the aforesaid judgment, there is a presumption when a person is in possession of a residential house, he shall be also deemed to be in possession of movable and immovable attachments pertaining to the said house and as per order dated 09.05.2003 the attachment warrants in respect of the property bearing No. 17, Rameshwar Nagar, Azadpur, Delhi belonging to Smt. Gian Kaur/appellant was ordered to be not attached, as she had produced a sale deed in her favour which order has become final as admittedly, no appeal has been preferred against the said order. Accordingly, this observation of the ld. trial court that since the cash memo of refrigerator does not bear name of the purchaser and no other document has been placed on record to show that the articles seized by the bailiff, belonged to the appellant, is not correct as the appellant is presumed to be in possession of all the movables and immovable attachments in relation to the aforesaid house unless contrary is shown to the court by decree holder. 9 Accordingly, there is nothing on the record to show that the said goods i.e. refrigerator, one dining table, five chairs, one center table, one sofa set, one ceiling fan did not belong to appellant or they belonged to the respondents No. 2and 3. Accordingly, the impugned order dated 04.08.2006 passed by ld. trial court is not sustainable and the same is set aside and the goods so seized by the bailiff be released in favour of the appellant after thirty days from the date of this order. Accordingly, the appeal is allowed. Trial court record be sent back alongwith a copy of this order and appeal file be consigned to Record Room.
Announced in the open court on 12.09.2007.
(Sanjeev Aggarwal) Addl. Sr. Civil Judge :Delhi.