Punjab-Haryana High Court
Satinderjit Singh And Others vs Karnail Singh on 30 August, 2013
Author: K. Kannan
Bench: K. Kannan
CR No. 7512 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 7512 of 2009 (O&M)
Date of decision: August 30, 2013
Satinderjit Singh and others
...Petitioners
Versus
Karnail Singh
...Respondent
CORAM:- HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. Amarjit Singh, Advocate
for the petitioner.
None for the respondent.
K. KANNAN, J. (Oral)
There is no representation on behalf of the respondent at the time when the matter was called.
The revision is against the order disposing of an application purported to have been filed causing objection to the attachment in execution of the decree for ejectment and for mense profits. The decree had been passed against 1st petitioner's husband Charanjit Singh for ejectment and at the time of delivery, three items of movables, namely, a colour television, a refrigerator and a scooty were attached and handed over to the decree holder as garnishee. The petitioners, who are legal representatives of the judgment debtor Charanjit Singh, contended that the movables attached did not belong to the judgment debtor and that the attachment effected was erroneous. I may observe that the attachment order was erroneous, the order must be taken as one filed under Order 21 Rule 58 CPC and not under Order 21 Rule 101 CPC. In any event, any order passed by the executing court either under Order 21 Rule 58 or Order 21 Rule 101 relating to right, title and interest of the person who stakes claim are appealable orders. The revision before this Court itself will not be competent. Even though the executing court has allowed the 3rd party objection that properties attached did not belong to the judgment debtor and hence could not have been attached and the decree holder has not himself filed any objection to the Singh Prem finding or preferred any appeal. Only the relief of damages claimed but 2013.09.05 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 7512 of 2009 2 which was not awarded in the subject of challenge now.
I thought over the issue whether revision could be dealt with by this court since the order passed was an appealable order. The counsel for the petitioners points out to me of certain illegalities which would justify court's intervention, ever if an appeal could have been preferred. He states that the decree holder caused movable to be seized and held in illegal custody in connivance with the bailiff, The counsel points out to me that when the execution petition was presented by the decree-holder in court, the execution petition refers to a list attached for movables, but there was really no such list in the execution petition. Original file reveals that the petition had been received by the court under its signatures on 10.12.1999. The bailiff's attachment is seen elsewhere in the file on 3.11.1999, referring to attachment of three articles referred to above and the list of articles to be attached is seen on the following page referring to the three items. The counsel states that this list was produced subsequently to make it appear that the attachment has been done in accordance with law. I cannot vouch for the correctness of the contention of the counsel, for, there ought to have been an objection taken to that effect before the executing court and the fact elicited in the cross-examination of the decree-holder that he had not given list alongwith the petition and that the list found in the file was later interpolated. I do not find any such contention as having been raised by the petitioners before the court below.
Since the case has been admitted before this court in revision and notice also issued to the party, I do not think it is necessary to direct the party to prefer an appeal again for fresh consideration. Consistent with the finding of the execution court that movables attached did not belong to the judgment debtor and the petitioners did not have the benefit of household articles like refrigerator, an important mode of transport like Scooty and a component of entertainment like television owning to the subsistence of attachment, for nearly seven years, the court's power to direct damages for unlawful attachment under Section 95 can be extended upto Rs. 50,000/- in terms of the amended provision of the Code of Civil Procedure. The order, if passed under Section 95 CPC, would have been revisable and that would therefore afford a justification now. The counsel states that each of the movables had gone into total disuse and wasted for over 9 years in the Singh Prem 2013.09.05 17:05 I attest to the accuracy and integrity of this document High Court Chandigarh CR No. 7512 of 2009 3 hands of the decree-holder. To a middle class family, each one of the items must have been of immense value. I have no doubt in my mind that the decree holder who obtained an ex-parte decree without service of notice to judgment debtor was able to terrorize the family of judgment debtors to submission by seizing important articles of daily consumption, took possession of demised property and was able to deprive the family of petitioners their use. Interest of justice, in my view, would best be served if the petitioners are granted damages to the extent of Rs. 25,000/-. The order passed already stands modified and the petitioners will also have benefit of compensation at Rs. 25,000/-. The revision petition is disposed of with the above direction.
August 30, 2013 (K.KANNAN)
prem JUDGE
Singh Prem
2013.09.05 17:05
I attest to the accuracy and
integrity of this document
High Court Chandigarh