Delhi High Court
Mahesh Chand Sharma vs Jaswant Rai Hora on 28 November, 2001
JUDGMENT V.S. Aggarwal, J.
1. Mahesh Chand Sharma had filed a civil suit. The same was decreed. The decree holder has preferred the execution petition. In pursuance of the property having been attached objections have been filed by Jasbir Singh and Harpal Singh, hereinafter described as the objector.
2. The facts alleged are that the property BG-534 Sanjay Gandhi Transport Nagar does not belong to the judgment debtor as he had sold his rights in the said property a back a in the year 1988. It has been explained that Municipal Corporation of Delhi handed over possession of the commercial plot in favor of Jaswant Rai Hora, the judgment debtor. Jaswant Rai agreed to sell the aforesaid property to his brother Amrit Lal Hora vide agreement of sale dated 18th January, 1988. He also executed registered will and General Power of Attorney in favor of Amrit Lal Hora. In the will Amrit Lal Hora was given the power to further sell the property in favor of any other person. Amrit Lal Hora was general attorney Jaswant Rai agreed to sell the property for a consideration of Rs. 52,000/- in favor of Sujjan Singh s/o Tala Ram and Harpal Singh, objector vide agreement of 19th July, 1989. The said consideration amount was duly received by Amrit Lal Hora as mentioned in the said agreement. Shri Amrit Lal Hora also executed a registered general power of attorney in favor of Sujjan Singh and applicant Harpal Singh empowering them to do all acts and deeds with respect to the property. Possession of the subject-matter of the property was duly handed over by Amrit Lal Hora to Sujjan Singh and the applicant harpal Singh. Shri Sujjan Singh vide agreement of sell dated 23rd March, 1990 agreed to sell his share to objector Jasbir Singh for a consideration of Rs. 320,000/-. The said consideration was duly paid and received by Sujan Singh. Sujan Singh handed over possession of his share to objector Jasbir Singh. Sujan Singh executed a power of attorney in his favor.
3. It is claimed that on the basis of these document after purchase of the rights of Jaswant Rai Hora the present objectors are in exclusive possession of the property. They have right, title and interest in the property and therefore it was prayed that the property in question could not be so attached.
4. Reply has been filed to the objections. It has been asserted that objectors have no right, title or interest in the property. It is alleged that title of the property is still with the judgment debtor. It has further been pointed that property still stand mutated in the name of the judgment debtor in the records of the Municipal Corporation. No sale deed has been executed by the judgment debtor. At best it has been pointed that agreement of sale have been executed which will not confer title on the objectors.
5. At the outset it must be stated that if the objections on the face of it are frivolous then it would not be worth a try and they must be dismissed at threshold. The rule of law would not require that every frivolous petition must be continued to create unnecessary delay.
6. In the present case the objectors have placed on record the agreement of sale purported to have been executed by judgment debtor in favor of Amrit Lal Hora. Perusal of the same reveals that in this agreement of sale it has been mentioned that the judgment debtor has agreed to sell the property and the second party has agreed to purchase the same. The amount of consideration is blank. It cannot be termed that there was an agreement of sale and the sale consideration is not decided. This makes the very document i.e. agreement of sale purported to have been executed suspicious and not tenable. The document further mentions that the sale consideration to be paid to the judgment debtor. When there is no sale consideration indeed it is difficult to presume or assume as to what he has to be paid before the Sub Registrar. it makes the document suspicious.
7. There is another way of looking at the matter. The judgment debtor is purported to have executed a general power of attorney and an agreement of sale in favor of Amrit Lal Hora. Amrit Lal Hora executed a further general power of attorney in favor of objector No. 2 and Anr. The said third person executed general power of attorney and agreement in favor of objector No. 1. Till date admittedly there is no sale deed in favor of any of these persons. The owner of the property admittedly was the judgment debtor. By virtue of the general power of attorneys coupled by delivery of possession certain rights may accrue to those in whose favor general powers of attorney have been executed. But those rights would be available only against the persons who executed the general power of attorney but by no stretch of imagination it can be taken that the person in whose favor general power of attorney has been executed would become the owner of the property. The title would therefore vest in Jaswant Rai Hora, the judgment debtor.
8. During the pendency of the present proceedings Jaswant Rai Hora, judgment debtor has died. He is purported to have executed a will in favor of Amrit Lal Hora. Even if it be assumed that such a will had been executed and property would devolve on Amrit Lal Hora still when such an act happens Amrit Lal Hora would get the property subject to all encumbrances, if any. In that view of the matter there is no option but to hold that objectors could but seek vacation of order attaching the property in question because it still vested in the judgment debtor since deceased.
9. For these reasons objections being without merit must fail and are dismissed.
10. List on 10th April, 2002 for further proceedings.