Himachal Pradesh High Court
__________________________________________________________ vs Coram on 23 August, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 16 of 2018.
Judgment reserved on: 16.8.2018 Date of decision: 23.08.2018 __________________________________________________________ Ashok Kumar alias Harbans Lal ...Petitioner/Objector Versus Coram r to Santosh Kumar Sood and another ....Respondents/Decree-holder.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Petitioner : Mr. K.D. Sood, Senior Advocate, with Mr. Mukul Sood, Advocate.
For the Respondents : Mr. Ajay Sharma, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge It was way back in 1872 that the Privy Council while dealing with a case relating to the difficulties faced by a decree-holder in execution of the decree observed that:
".... the difficulties of a litigant in India began many years when he has obtained a decree." (Refer: General Manager of the Raj Durbhunga vs. Coomar Ramaput Singh (1871-72) 14 MIA 605: 20 ER 912).
____________________ Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 2
2. The decree holder/respondent in this case is still to enjoy the .
fruit of the decree that was passed in his favour way back in the year i.e. 16.5.1997 in a suit that was instituted by him more than 28 years back i.e. on 01.03.1990.
3. Brief facts of the case are that a suit for recovery of money was filed by the Decree-holder Santosh Kumar Sood against one Sh. Amar Nath Sood, which was decreed for a sum of Rs.3,27,000/- alongwith interest at the rate of 12% per annum from June 1987 by the learned District Judge, Kangra in Civil Suit No.3-P/1/95/90. In execution of the decree, the decree-
holder moved an application for attachment of the property of the judgment-
debtor Amar Nath. In pursuant thereto, warrants of attachment of the properties were issued and thereafter the properties were put to sale. In the interregnum, the decree holder was permitted to participate in the public auction and in the auction so conducted, he happened to be the highest bidder having purchased the attached properties for Rs.14,79,445.35.
However, in the sale certificate that came to be issued in favour of the decree-holder, he noticed that some of the properties which had been attached and had in fact been put to auction, were not mentioned therein and, therefore, he accordingly filed an application under Sections 151, 152 and 153 of CPC for amendment/correction of the sale certificate dated 11.11.2009. It was averred in the application that the sale certificate issued in favour of the decree-holder was not issued strictly in terms of Order 21 Rule ::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 3 66 as the same did not contain the necessary details in respect of the .
property auctioned/sold and there appeared some clerical error, which ought to be rectified.
4. The petitioner herein, who admittedly is not Judgment debtor, contested this application claiming certain interest in the property as would be evident from para 8 of the preliminary objections and paras 2 to 5 of reply on merits, which read thus:
"8. That the land and property in khata No.20 which is in upper Khaira is not constructed by Amar Nath which were built up by Krodhu Devi who had executed a registered will dated 20.5.1993 of shops and house and building of State Bank of Patiala in khasra No. 107 under tenancy of State Bank of India was given away to Harbans Lal alias Ashok Kumar was given to him, since it was constructed by respondent No.2 only after spending huge amount. Amar Nath deceased has nothing to do with the above building and shops. The said matter is subjudice in Civil Suit No. 325/09 titled as Harish Chand etc. vs. Ashok Kumar etc. pending in the court of Civil Judge (Sr. Divn.), Palampur. As such the application liable to be dismissed. The shops were built up by Ashok Kumar only whereas old shops had fallen down in 1997-98. The new structure of 3 shops was raised by respondent No.2. There is no old construction of shops and house in existence during life time of Krodhu Devi, the mother of the respondent No.2. As such, the application is liable to be dismissed.
2 to 5. The allegations are wrong and denied. The petitioner has not come to the Court with clean hands. In fact, earlier auction of disputed land owned by Amar Nath JD was issued and the entry was made in revenue record vide rapat No.41 on 07.10.98.::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 4
Thereafter, the petitioner/D.H moved the application for its .
cancellation of and new warrant of publication was issued vide rapat No.317 on 07.5.2007 of the land in suit owned and possessed by Amar Nath in Khata No.76 in Kanyalkar of Khasra Nos. 325, 326, 329, 369, 371 area 0-26-50 to extent of 1/5th share, area 0-05-30 khata No.77, Khatauni No.160, Kita 31 area 0-59-22 hects to extent of 21/780 shares area 0-01-59 hects khata No.78 area 0-02-95 to extent of 21/3120 shares i.e. 0-00-02 hects, khata No.80 kita 20 area 0-15-05 hects to extent of 21/3120 shares i.e. 0-00-10 hects and khata No.80/1 kita 4 area 0-04-71 to extent of 21/3120 hects area 0-00-03 hects of Kanyalkar was attached and auction was to be held on 24.5.2007, thereafter the sale certificate was issued to the petitioner/DH. As only the share of Amar Nath was attached by attachment, in the suit land alongwith house and shops if any. In fact the D.H. has received an amount of Rs.1.50 lacs for which bond was filed by late Amar Nath, which was the tentative value of the alleged truck and house as given in the bond vide dated 05.6.2007 passed by Hon'ble Court in CMA/574/2004. The D.H. has not attached any detail and maps of houses and shops alongwith execution/petition. The petitioner/DH has himself appeared in the auction proceedings on 24.5.2007 through his Advocate Raksh Sharma and gave bid for 13,21,445.35 Rs. which was accepted by the Tehsildar A.C. 1st Grade, Palampur. In fact, the suit land alongwith residential house in Khata No.80/1 is ancestral house and shops are built by Jyoti Parkash and after his death his legal heirs Pardeep Kumar, Jagshri Devi, daughters Manjoo Lata, Kalpana, Vandana and Anjana are in possession of above structures, who are residing in the above house.
That the land and property in khasra No.20 which is in upper khaira is not constructed by Amar Nath, which was property of Krodhu Devi, the mother of the respondents and Amar Nath etc. who had executed a Registered Will on 20.5.1993 of the land in ::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 5 Upper Khaira and building of State Bank of India was given away to .
the respondent Ashok Kumar No.2 since the above building under tenancy of S.B.I. was constructed by respondent No.2 only after spending huge amount. Amar Nath deceased was not entitled to any share of building of SBI and other structures. The said will has been challenged in Civil Suit No.325/09 by Harish Chand etc. vs. Ashok Kumar etc. in the court of ld. Civil Judge, Palampur (Sr. Divn.) who has directed the parties to maintain status quo qua nature possession and alienation on 23.12.2009 of land and property in khata No.20 in upper Khaira as in which the petitioner/DH is party to the suit at Palampur as such the matter is subjudice between the parties and the same is going to be decided by the court of Sub Judge (Sr. Division), Palampur. In fact, there were old two shops which were fallen down in 1997-98 and the respondent No.2 has built up 3 lanteled shops alongwith residence of respondent No.2 there upon. Amar Nath had only share in land and not in the structures thereupon. No correction in the sale certificate can be ordered as it will amount fresh new sale certificate which was never ordered by the Hon'ble Court on basis of sale conducted on 24.5.2007, there was no detail and map of shops, houses annexed with the execution application of DH/petitioner. As such no detail of houses and shops could be added to the sale certificate already issued to the DH. No Kothi double storey latenled one was subject matter of attachment on 7.5.2007 and sale on 24.5.2007 nor Amar Nath had 1/4th share in shops /building which are constructed by respondent No.2 only. All other allegations are wrong and denied."
5. The learned Executing Court allowed the application after concluding that the sale certificate was required to be issued as per the sale warrant Ex.AW-1/T wherein the description of the attached properties of the ::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 6 J.D. had been mentioned vide paras (i) to (xiii), whereas in the sale .
certificate, the shops/ residential area stated in para Nos. (vi), (vii), (xi), (xii) and (xiii) had been excluded, therefore, correct sale certificate be issued after including these properties.
6. It is this order, which has been assailed by the petitioner (for short 'impugned order'). The petitioner has laid challenge to the impugned order mainly on the ground that there was no mistake in the sale certificate which had been issued in pursuance to the sale effected of the properties which had earlier been attached and, therefore, no sale certificate in respect of the properties which was not the subject matter of the attachment, could have been issued in favour of the decree-holder.
7. On the other hand, learned counsel for the decree-
holder/respondent would argue that the instant petition is nothing, but an abuse of the process of the Court as the petitioner herein has no interest whatsoever in the properties that have been put to sale and as a matter of fact the instant petition is proxy litigation instituted at the behest of the judgment debtors, who themselves have not either filed the objections or contested the impugned order and have set up the petitioner as a stooge.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
8. Every litigation must come to an end at some stage.
::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 79. As observed earlier, the main thrust of the objection of the .
petitioner is that the property now included in the sale certificate was never attached and, therefore, could not have been put to sale. However, the record clearly belies the submissions so put-forth by the petitioner. The record reveals that Ex.AW1/U is the order with regard to the issuance of sale warrant. Ex.AW1/T is the certified copy of sale warrant/notice under Order 21 Rule 66 CPC, wherein the description of the attached properties of JD has been clearly mentioned in paragraphs No. (i) to (xiii). The decree-holder being the highest bidder in the public auction in whose favour the sale had been confirmed, was to be issued a sale certificate strictly in consonance with the property/share of JD mentioned in Ex.AW-1/T. However, the sale certificate that was issued in favour of the decree-holder did not contain the entire description of the property of the JD Amar Nath that was attached and subsequently sold in favour of the decree holder. However, the sale certificate did not include the complete properties as were mentioned in paras (vi), (vii), (xi), (xii) and (xiii) of the sale warrant Ex.AW-1/T. Once that be so, then obviously no fault can be found with the order passed by the learned Executing court, whereby it allowed the application filed by the decree-holder for amendment of the sale certificate by ordering its correction and bring it in conformity with the sale warrant Ex.AW-1/T.
10. Apart from the above, in case the reply of the petitioner to the application for amendment of the sale certificate is perused, then it would be ::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 8 noticed that nowhere the petitioner has ever contended or even disputed .
that the properties not included in the sale certificate sought to be amended, had never been attached or put to sale, rather the entire thrust in the objections is with regard to either the property being ancestral or that there was a registered sale and so on and so forth (as quoted supra), which objections obviously were not available to the petitioner.
11. Thus, what can be conclusively held by this Court is that the entire endeavour of the petitioner is nothing else but to ensure that the decree holder does not enjoy the fruits of the decree despite the same having been passed in his favour in a suit instituted nearly three decades back.
12. It is really agonising to see that the decree holder is unable to enjoy the fruits of his success even today, therefore, while dismissing this petition, it is directed that the Executing Court shall ensure that the properties as mentioned in the corrected sale certificate and all other consequential action, if not already taken, be taken within 15 days from the receipt of the copy of this order.
13. The parties through their counsel(s) are directed to appear before the learned Executing Court on 27.8.2018.
14. In view of the above discussion, the petition is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.
::: Downloaded on - 23/08/2018 23:01:37 :::HCHP 9Copy dasti.
.
23rd August, 2018 (Tarlok Singh Chauhan)
Judge
(GR)
r to
::: Downloaded on - 23/08/2018 23:01:37 :::HCHP