Rajasthan High Court - Jaipur
Bhag Chand vs Naval Kishore Goyal And Ors on 5 October, 2012
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL WRIT PETITION NO.15818/12. BHAG CHAND PETITIONER. VS NAVAL KISHORE GOYAL & ORS. RESPONDENTS. DATE OF ORDER : 5TH OCTOBER, 2012. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr.Vikas Jain for the petitioner. ORDER BY THE COURT :
1. The petitioner-objector has filed the present petition challenging the order dated 1.9.12 passed by the Addl. District Judge No.4, Kota (hereinafter referred to as 'the executing court') in Civil Misc. Case No. 15/07, whereby the executing court has dismissed the application of the petitioner for summoning the concerned Income Tax Officer for production of the documents.
2. In the instant case,it appears that the decree sought to be executed before the executing court was passed in favour of the respondent No.1-decree holder against the respondent Nos. 3, 4 and 5-judgment debtors. In the said proceedings, the respondent No.1 had filed an application for attachment of the property situated at 12-A, New Dhan Mandi, Kota, alleging that the said property belonged to Shri Balchand. Accordingly, the Executing Court had issued the warrant for attachment of the said property under Order XXI Rule 54 of CPC and thereafter the proceedings for proclamation of sale were also carried out. When the auction proceedings were being conducted on 19.3.07, the petitioner filed an application before the executing court on 26.3.07 under Order XXI Rule 69 of CPC for the stay of sale of the property in question. It appears that thereafter also the petitioner kept on filing applications one after the other in the execution proceedings, however all the applications were rejected by the Executing Court. The petitioner lastly submitted the application praying the executing court to summon the Income Tax Officer with the documents, more particularly the so-called dissolution deed of the firm M/s. Balchand Nemichand. The application has been dismissed by the executing court vide the impugned order dated 1.9.12.
3. It has been sought to be submitted by the learned counsel for the petitioner that the petitioner was not party to the suit and was also not the partner of the respondent No.5 firm namely Balchand Sunil Kumar Jain HUF firm, however he was partner of the firm M/s. Balchand Nemichand, which was already dissolved in the year 1981 and that the original dissolution deed was lying with the Income Tax Department. According to him, the property in question was given to him under the said dissolution deed and the said deed was lying with the Income Tax Department. He also submitted that though the petitioner had made efforts to get the copy of the said dissolution deed, he could not get it from the Income Tax Department and, therefore he had made the application before the Executing Court for summoning the said document, which has been wrongly dismissed by the executing court.
4. Having regard to the submissions made by the learned counsel for the petitioner and to the impugned order passed by the executing court, it appears that the petitioner is the brother of the respondent No.3 and son of the respondent No.5 'Karta' of HUF Bal Chand Sunil Kumar Jain. The decree sought to be executed by the respondent No.1-decree-holder was passed against the respondent Nos. 3,4 and 5. The petitioner has filed objection on the ground that the property sought to be sold did not belonged to the judgment debtors but it belonged to the petitioner. It appears that the petitioner has failed to produce any document to show that the said property belonged to the petitioner and, therefore the executing court has rightly observed that the application was filed by the petitioner only with a view to delay the proceedings. It also appears that the petitioner had made other applications prior to filing the present application which were also dismissed by the executing court and the said orders remained unchallenged. The executing court has rightly observed that there was nothing on record to suggest such a dissolution deed was with the Income Tax Department. It is also not disputed that the firm which the petitioner alleges to have been dissolved by the said dissolution deed was never registered under the Partnership Act.
5. Under the circumstances, the executing court has rightly dismissed the application of the petitioner. The learned counsel for the petitioner has failed to point out any illegality or infirmity in the impugned order passed by the Executing Court and hence the present petition deserves to be dismissed. The petition being devoid of merits is dismissed accordingly.
(BELA M. TRIVEDI) J.
MRG.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
M.R. Gidwani PS-cum-JW