Karnataka High Court
Salma Begum vs K.Ramsingh on 7 April, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.920/2016
BETWEEN:
SMT. SALMA BEGUM
W/O MOHAMMED SHAFI
AGED ABOUT 33 YEARS
R/AT NO.206, D-33
MUTHAVALLI MOHAMMED
YAHOOB STREET
SALEM TOWN & DISTRICT
TAMIL NADU STATE. ... APPELLANT
(BY SRI. K SRINIVASA, ADVOCATE)
AND:
1. K RAMSINGH
S/O A.K. KASI RAJA
AGED ABOUT 41 YEARS
R/AT NO.E-16, MCL COLONY
PAC RAMASWAMY RAJANAGAR
ALATHIYUR-621 730
PENNADAM
ALRIYALUR DISTRICT
2. SMT.G. VIMALA
W/O S GOPINATHAN
AGED ABOUT 45 YEARS
R/AT NO.4, TOWN HALL
3RD STREET, STUARTPET
ARRKKONAM TOWN
2
VELLORE DISTRICT
TAMIL NADU-631 001.
... RESPONDENTS
(BY SRI KALYAN, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED 14.09.2015 PASSED ON
I.A.NO.4 IN EX.NO.1205/2012 ON THE FILE OF THE 42ND
ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH NO.43) DISMISSING THE I.ANO.4 FILED U/O 21
RULE 58 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against order dated 14.09.2015 passed on I.A.No.4 by 42nd Addl.City Civil and Sessions Judge, Bangalore in Execution Case No.1205/2012 whereunder application filed under Order 21 Rule 58 CPC by the appellant as objector to the sale of property attached in O.S.No.20/2006 by Fast Track Court, Ranipet, Tamil Nadu came to be rejected . 3
2. Facts in brief had which has led to filing of this appeal can be crystallised as under:
First respondent herein filed a suit in O.S.No.20/2006 on the file of Fast Track Court,Ranipet, Vellore District, Tamil Nadu against second respondent herein for recovery of monies alleged to have been due to plaintiff and obtained an exparte judgment and decree. Execution petition came to be filed in Execution Case No.4/2011 on the file of Fast Track Court, Ranipet, Vellore District. In the said execution petition, immovable property described therein was sought to be attached and sold for realizing the decreetal amount. The decree holder also sought for issue of sale proclamation. Since property sought to be sold was situated within the jurisdiction of Bengaluru, the executing Court at Ranipet, Tamilnadu transferred the decree by Decree Transfer Proceedings (DTP' for short) to the Principal Civil Judge and Sessions Judge, Bengaluru. On such transfer of DTP, it was posted 4 before the City Civil Court, Bengaluru (CCH No.18) for disposal in accordance with law on being numbered as Execution Case No.1205/2012. Property bearing No.19, Corporation No.268 situated at 8th Cross, 2nd Main Road, Prakash Nagar, Rajajinagar III Stage, Bengaluru is sought to be attached namely, an order of attachment before judgment is sought to have been issued in O.S.No.20/2006 by the Fast Track Court, Ranipet. As such, decree holder sought for sale of the suit property under the Decree Transfer Proceedings.
3. On such transfer of the decree, appellant herein filed an application under Order 21 Rule 58 CPC read with Section 151 CPC as objector contending interalia that judgment debtor - Smt.G Vimala was the owner of property in question and she had conveyed the same for valuable consideration in favour of Sri V.Doraswamy Naidu under an agreement of sale executed in the year 2006 and sale deed was got 5 registered on 22.09.2009 and name of Sri V.Doraswamy Naidu has been entered in the revenue records. It was further contended that objector had purchased said property from Sri V.Doraswamy Naidu under a registered sale deed dated 21.02.2011 and revenue records was also mutated in the name of the objector. Thereafter Objector is also said to have sold property to one Sri Jamal Fairoz. It was further pleaded that market value of the property is worth more than ` 50 lakhs and had been mortgaged to M/s.Devikrupa Chit Funds Private Ltd. and original title deeds are with the said company.
4. It was further contended by the objector that though decree holder contended that property had been attached to recover the suit amount, no documents were produced and judgment debtor colluding with decree holder has obtained the decree and decree holder is not entitled to execute the decree. It was further 6 contended that by the objector that she is permanent resident of Salem Town, Tamil Nadu and during first week of April, 2014 she was informed by her tenant over telephone that a copy of the proclamation of sale had been affixed to the main door of the execution schedule property and immediately thereafter has taken steps and has sought for release of the execution schedule property from attachment, alternatively to adjudicate the claim of the objector in respect of the said property.
5. Decree holder filed objections and denied the averments made in the application. Before the executing Court, objector got herself examined as P.W.1. However, her evidence was not taken into consideration since she did not offer herself for cross-examination. Neither decree holder nor judgment debtor entered the witness box. Executing Court formulated the following point for its consideration:
7
(1) "Whether the objector proves that she is the absolute owner of the suit property and judgment debtor has no right in the property and as such, the court cannot proceed to sell the property under order 21 Rule 58 of CPC?
(2) What order?"
Executing Court, after considering the material available on record, rejected the application on the ground that objector has not placed any material to substantiate her claim and judgment debtor had not paid any amount to the decree holder and as such, property which has been attached is liable to be sold and decreetal amount is to be recovered by the decree holder. Hence, sale proclamation issued in respect of attached property was upheld and objections of the appellant - objector for raising attachment came to be rejected vide order dated 14.09.2015. 8
6. I have heard the arguments of Sri. Srinivasa, learned Advocate appearing for appellant and Sri. Kalyan, learned Advocate appearing for respondent No.1.
7. It is the contention of Sri K.Srinivasa, learned Advocate appearing for appellant - objector that when the order of attachment before judgment itself is not in compliance with Order 21 Rule 58-A (insofar as it is applicable to the State of Tamil Nadu), sale proclamation or any steps taken pursuant to the same is void, illegal and cannot be enforced. He would also submit that when the matter was posted for recording cross examination of P.W.1 on 07.03.2015, trial Court has recorded that there is no further examination-in- chief of P.W.1 and as such, it has closed the evidence of P.W.1 and listed the matter for further hearing. Subsequently thereafter, matter has been heard and disposed of. Hence, he contends that there was no 9 sufficient opportunity afforded to the objector to substantiate the claim and prays for setting aside the order passed by executing Court.
8. Per contra, Sri. Kalyan, learned Advocate appearing for respondent No.1-decree holder would support the order passed by executing Court and contends that when objector to execution proceedings intends to stave off the decree being executed on the ground that attachment before judgment which was made is not in accordance with the provisions of Civil Procedure Code, 1908, burden is upon her to establish this fact and on account of said burden having not been discharged by the objector, application has been rightly dismissed. Hence, he prays for dismissal of the appeal.
9. Having heard the learned Advocates appearing for parties and on perusal of records, it would disclose that undisputedly, execution proceedings before City Civil Court, Bengaluru is a Decree Transfer 10 Proceedings. First respondent herein after having filed a suit for recovery of money against second respondent i.e., defendant had obtained an order of attachment before judgment of the property which is sought to be sold by issuance of sale proclamation in the Decree Transfer Proceedings i.e. Execution Case No.1205/2012 pending on the file of 42nd Addl.City Civil and Sessions Judge, Bengaluru.
10. When the order of attachment is issued under Order 38 Rule 5 CPC, Rule 7 of Order 38 also mandates that such attachment is to be effected or made in the manner provided for attachment of property in execution of a decree namely, as provided under Order 21 Rule 54 CPC. Amendment came to be made by the State of Tamil Nadu and Rule 58-A to Order 21 CPC was incorporated and it reads as under: 11
"Rule 58-A MADRAS- After R.58, insert as under:
"58-A. A order of attachment to be communicated to the Registering Officer- Any order of attachment passed under Rule 54 of this order and any order raising the attachment by removal, determination or release passed under Rule 55, 57 or 58 of this order, shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order, is situate"- T.N. Govt.
Gazette, 15-7-1987, Pt. III, S.2, p.250 (No.27)."
11. A bare reading of the said provision would indicate that an order of attachment passed under Rule 54 and any order raising the attachment for removal, determination or release under Rule 55, 57 or 58 of the Order 21 is to be communicated to the Registering Officer within the local limits of whose jurisdiction, whole or any part of the immovable property comprised in such order is situated. In the instant case, grievance of the objector is that there has been non compliance of 12 this provision. Per contra, Sri.Kalyan,. learned Advocate appearing for decree holder contends that there has been compliance of this provision. None of the parties have tendered evidence in this regard. Even though objector has entered the witness box as P.W.1 and filed an affidavit in lieu of examination-in-chief , did not appear before Court on the next date when it was listed for cross examination i.e., on 07.03.2015. As such, trial Court has recorded as under:
"PW.1, absent.
Counsel for Objector absent.
DHR counsel present.
Hence, further examination in chief of PW-1 is closed. The cross examination is taken as Nil as he has not offered for cross examination."
As such, evidence of P.W.1 has not been eschewed by the Court below. In view of the fact that positive assertion has been made by Sri Kalyan, learned Advocate appearing for decree holder before this Court that there are material to demonstrate or establish or 13 prove that order of attachment made under Order 38 Rule 5 by Fast Track Court, Ranipet, Vellore District, Tamil Nadu was duly intimated to the jurisdictional Sub-Registrar Office at Bengaluru in compliance with Order 21 Rule 58A (as amended in the State of Tamil Nadu) and there being no material available from the records of the Executing Court to establish this fact except self assertion and no document having been marked in this regard by decree holder, it would be apt and appropriate to remit the matter back to the executing Court for adjudication afresh and also in view of the fact that there was no opportunity to the objector
- appellant herein to tender herself for cross examination by extending said opportunity.
12. For the reasons aforestated, I proceed to pass the following:
14
ORDER (1) Appeal is hereby allowed.
(2) Order passed by 42nd Addl.City Civil and Sessions Judge, Bengaluru dated 14.09.2015 in EX.No.1205/2012 on I.A.No.4 is hereby set aside.
(3) I.A.No.4 filed by appellant - objector under Order 21 Rule 58 CPC is restored to the file of the Executing Court for being adjudicated and disposed of keeping in mind the observations made herein above.
(4) Both parties to appear before the Executing Court on 07.06.2017.
(5) Registry is directed to transmit records to the jurisdictional Court forthwith. (6) In view of the fact that matter is pending before the Executing Court since 2015, Executing Court shall take all steps to expeditiously 15 dispose of the matter subject to both parties co-
operating with the executing Court.
In view of the appeal having been disposed of, I.A.No.2/2016 does not survive for consideration and it is accordingly rejected.
SD/-
JUDGE *sp