Calcutta High Court (Appellete Side)
Malabika Maity vs M/S. Target Construction & Anr on 7 September, 2015
Author: Harish Tandon
Bench: Harish Tandon
06 07.09.15 C.O. 2744 of 2015
akd
Malabika Maity
Vs.
M/s. Target Construction & Anr.
--------
Mr. Biswajit Basu, Mr. Kishore Mukherjee, Mr. Sankha Subhra Roy.
... for the petitioner.
Mr. T. K. Tewari, Mr. K. J. Tewari, Mr. T. J. Tewari.
... for the opposite parties.
The challenge is made to an order no. 248 dated 21st May, 2015 passed by the learned Civil Judge (Senior Division), Ghatal in Miscellaneous Case no. 02 of 2015, by which an application raising objection to an order of attachment of the property purchased by the petitioner and an attempt to sell the said property is rejected.
It appears that the Money Suit culminated into a decree, which was put into execution before the learned Civil Judge (Senior Division), Ghatal.
Admittedly the application for execution of decree filed in a prescribed format does not disclose the property claimed by the petitioner. The property subsequently was included on an application for amendment taken out by the decree holder/opposite party.
A Writ of attachment was issued as the same is filed by the decree holder without recording any order of attachment. The Court thereafter proceeded with the Execution Case and when an attempt to sell the said property was made, the petitioner claiming to be an auction purchaser intervened and filed an application before the Executing Court. The prayer made in the said application is couched in an ambiguous manner as the petitioner prayed for transmission of the execution records to the Kolkata Debt Recovery Tribunal II.
The facts which emerged from the said application is that the Bank filed an application under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, which was finally disposed of on 15th December, 2008 allowing the claim of the Bank and restraining the defendants from transferring, alienating, encumbering or disposing of the mortgaged and/or hypothecated property or any other property belonging to him/them till the recovery of the debt amount.
The certificate was thereafter sent to the Recovery Officer for due execution in accordance with law. The Recovery Officer, as it appears, conducted the sale by public auction and the petitioner is adjudged as the successful bidder therein. It is further averred that a sale certificate was issued and the possession in respect of the secured assets was also delivered to the petitioner.
In paragraph 14 of the said application it is stated that pursuant to the sale certificate and the possession having delivered to him the petitioner duly recorded her name in the relevant record of rights and is discharging her duty as owner by paying tax to the Government.
The challenge is thrown to the action of the Executing Court in proceeding with the execution by taking shelter under Section 31A of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. In the said proceeding an application under Section 151 of the Code of Civil Procedure was further taken out for an interim order in the form of stay of the Money Execution Case No. 1 of 2005 pending the said Miscellaneous Case.
It is pertinent to record that the said Miscellaneous Case No. 2 of 2015 originated from an application under Order XXI Rule 58 of the Code of Civil Procedure, though the nomenclature is wrongly written as Section 47 of the Code.
Be that as it may, it is a settled law that misquoting or wrong quoting of the provision is not a determinant factor as the Court is required to look into the substance thereof.
The Executing Court appears to have been swayed by the prayer made in the said application as such prayer is beyond the periphery of Section 47 of the Code. It is observed that Section 47 of the Code does not imbibe within itself any power on the Executing Court to transfer the records to any other Court or the Tribunal.
The petitioner raises several points both on facts as well as law. According to the petitioner, the said Miscellaneous Case should be treated as an objection to the action of the Executing Court in attaching the property and it is imperative under Order XXI Rule 58 of the Code of Civil Procedure to adjudicate the same.
According to the petitioner, there is no conscious decision or proper findings on the points agitated in the said application or agitated at the Bar on the legal issues, as the Executing Court simply dismissed the said application on construction of the prayer holding that the same is beyond the scope of Section 47 of the Code.
By referring several orders passed in the Execution proceeding, it is sought to be contended before this Court that the order of attachment per se is illegal. It is further contended that the attachment cannot be allowed to continue in absence of any order passed under Order XXI Rule 54 of the Code of Civil Procedure.
On the other hand, the decree-holder/opposite party submits that the moment the Writ of attachment is issued by the Executing Court, it raises a legal presumption on passing an order of attachment and, therefore, it cannot be said that the approach of the Executing Court is not legal and proper.
The reliance appears to have been placed upon the judgements of the Apex Court in case of Nahar Industrial Enterprises Limited vs. Hong Kong and Shanghai Banking Corporation reported in (2009) 8 SCC 646 and Ram Kishun & Ors. vs. State of Uttar Pradesh & Ors. reported in (2012) 11 SCC 511.
It is further sought to be contended that once an attachment is made, it presupposes the compliance of the requisite formalities as held by a Full Bench of Kerala High Court in case of Ramesan vs. Kunhipalu & Ors. reported in AIR 1977 Kerala 119.
This Court feels that it is not necessary to enter into the ratio laid down in the aforesaid Reports for the simple reason that the Executing Court had no occasion to consider the aforesaid aspects.
The application was dismissed, as the disputes raised do not come within the purview of Section 47 of the Code. The Executing Court misdirected himself in going by the nomenclature of an application than looking into the substance thereof. Even if the payer is not perfectly couched but contains an omnibus prayer, the Court should adjudicate the matter on the basis of the averments made therein and to decide the issue in accordance with law.
The approach of the Executing Court appears to be too technical than the justice oriented. This Court, therefore, finds that the order impugned suffers from illegality and/or infirmity and the circumstances warrant interference thereof.
The order impugned is thus set aside.
The Executing Court is directed to consider the application afresh treating the same to have been filed under Order XXI Rule 58 of the Code of Civil Procedure and shall dispose of the same within three weeks from the date of the communication of this order by recording reasons on all the points canvassed before it, be on point of law or on facts.
For abundant precaution it is once again made clear that all points available to the parties are kept open and if taken before the Executing Court, the same shall be decided independently without being influenced by any observations made hereinabove.
Since it is a statutory duty cast on the Executing Court to adjudicate the objection or the claim under Rule 58 of Order XXI of the Code, let there be a stay of the Execution Case till the disposal of the said objection.
It is informed by the learned advocates for the respective parties that the Bench is vacant and, therefore, the Presiding Officer-in-Charge may be directed to take up the matter.
Since this Court remit the matter back to the Executing Court for fresh consideration, the Presiding Officer-in-Charge, if the regular Presiding Officer is not available, shall see that the time frame as indicated above is strictly adhered to.
With these observations the revisional application is disposed of.
There will be no order as to costs.
(HARISH TANDON, J.)