Civil Revision No. 3417 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3417 of 2010 (O&M) Date of decision: 12.07.2010 Rajesh Kumar and others ....Petitioners Versus Food Corporation of India and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Gaurav Mohunta, Advocate, for the petitioners. ***** VINOD K. SHARMA, J (ORAL) The petitioners by way of this revision petitioner challenged the order dated 20.1.2010 passed by the learned Civil Judge (Senior Division), Jind, vide which the objections filed by the petitioners under Order 21 Rule 58 of the Code of Civil Procedure, against the execution of the decree, were ordered to be dismissed. The decree-holder-Food Corporation of India has instituted two suits, one in the Court of the Additional Civil Judge (Senior Division), Gohana, and the other in the Courts of Jind. Both the suits were decided against M/s Barah Khurd Cooperative Labour and Construction Society Ltd. and also against its members, including Karan Singh, the father of the objectors. Decree for an amount of Rs.3,13,921.47 (Rupees three lac thirteen thousand nine hundred twenty one and paise forty seven only) and for a sum of Rs.18,11,398.76 (Rupees eighteen lac eleven thousand three hundred ninety eight and paise seventy six only). Civil Revision No. 3417 of 2010 (O&M) -2- The objections under Order 21 Rule 58 of the Code of Civil Procedure were filed by the petitioners i.e. sons of the judgment-debtor Karan Singh by pleading therein that under the family settlement, which was followed by relinquish deed executed by their father on 22.5.2001, the property was transferred in the name of the objectors. The learned executing Court dismissed the objections by recording a finding that transfer by Karan Singh judgment-debtor (JD) in favour of his sons was to defeat the rights of the creditors, including FCI, as the transfer was during pendency of suit and in favour of his sons. The petitioners preferred an appeal against the rejection of their objections. The learned Additional District Judge, Jind, accepted the appeal and set aside the order of the learned Executing Court passed in summary manner, without letting the parties to lead evidence. Even though, the appeal against an order passed under Order 21 Rule 58 of the Code of Civil Procedure, was not competent, however, in pursuance to the order passed by the learned appellate Court, remanding the case back, the learned executing Court framed the following issues: - “1. Whether the objections filed by objectors are liable to be allowed on the grounds mentioned in the objections? OP-objectors. 2. Whether the objections are time barred? OP- DH 3. Whether the objections are false and frivolous to delay the execution of decree with intention to defeat right of DH? OP-DH. 4. Relief.” Civil Revision No. 3417 of 2010 (O&M) -3- The parties were allowed to lead evidence in support of the objections. In support of the objections the principal contention raised was, that the objectors were not aware of the pendency of the civil suit against their father and that they became owners of the property under family settlement even before relinquish deed. The property attached was said to be ancestral and coparcenary property, therefore, could not be attached for execution of the decree. In support of this contention, the petitioners placed reliance on the judgment of the Hon'ble Lahore High Court in Nihali Chand-Gopal Dass Vs. Mohan Lal AIR 1932 Lahore 211. The learned executing Court did not accept this plea by holding, that at the time of execution of relinquish deed, the civil suit filed by FCI against the Society and its members, including Karan Singh, was pending in the Court. An attempt was also made by Karan Singh for setting aside ex parte judgment and decree, but, the application moved for setting aside ex parte judgment and decree was dismissed on 9.9.2008 vide Ex.E-1, and the appeal filed against the order was also dismissed. The facts further proved that FIR was also registered against Karan Singh and one Gurmail Singh for fabricating the documents to obtain the loan for the Society. The learned Executing Court also considered the evidence led and thereafter on appreciation of evidence did not accept the oral evidence led by petitioners. The learned Court held that the transfer in favour of the petitioners was fraudulent by placing reliance on the provisions of Civil Revision No. 3417 of 2010 (O&M) -4- Section 53 of the Transfer of Property Act. The learned Executing Court held that the transfer was fraudulent and dismissed the objection application. The learned Executing Court held that fraudulent transfers fall within the purview of Section 53 of the Transfer of Property Act. In support of this finding reliance was placed on the judgment of this Court in Joginder Singh Vs. Labh Singh and others, 1978 PLJ 199 and Smt. Shallo Devi and another Vs. Mohinder Singh and others, AIR 1971 Punjab and Haryana 325. The learned Executing Court also found that the evidence led by the petitioner to claim the property to be coparcenary Joint Hindu Family property could not be accepted, as the evidence led stood rebutted from the statements of OW1 to OW3. Issue No.1 was decided against the objectors. In view of finding on issue No.1, issues No.2 and 3 were also decided in favour of decree-holder and against the objectors. When the case came up for hearing, adjournment was sought on the plea that the petitioners have filed a revision petition against the ex parte decree. It was disclosed by the learned counsel for the petitioners that the said revision petition stands dismissed by this Court. The learned counsel for the petitioners challenged the order by contending that in absence of attachment of the property, the property belonging to the petitioners could not be sold. In support of this contention, the learned counsel for the petitioners placed reliance on the judgment of the Hon'ble Delhi High Court in Binatone Computers Pvt. Ltd.- Decree Holder, Vs. Setech Electronics Ltd. - Judgment Debtor, 2009 (162) D.L.T. 537, wherein Civil Revision No. 3417 of 2010 (O&M) -5- the Hon'ble Delhi High Court was pleased to lay down as under: - “15. Thus no case is made out for framing the issues and continuing the attachment as contended by the counsel for the plaintiff. 16. Before parting with this case it may be noticed that on query from the counsel for the Decree Holder as to what steps were taken by the Decree Holder before contending before this court for obtaining an ex-parte order of attachment that the property belongs to the Judgment Debtor, it is stated that the Decree Holder itself being a company, no inquiries could be made. A company cannot escape responsibility for its actions by contending to be a juristic person. It thinks and acts through its board of directors. When a person, be it a company, approaches the court for an ex-parte order and on whose statement the courts acts, it is expected to be fair to the court and to the party against whom order is sought. In the present case it appears that the Decree Holder has not made any enquiry from the L&DO or the MCD where the records of this property exist before averring that the property of which attachment was sought belonged to the Judgment Debtor. Such practice of obtaining attachments of properties of persons other than Judgment Debtors, without making any enquiry as to title ought to be deprecated. 17. I also find that not only did the Decree Holder not make any enquiry, in the case, but as would be obvious from above, even after being appraised of the title of the Objectors qua the said property, persisted in continuing the attachment and argued for the objections to be put to trial. The reason therefore is obvious. The Decree Holder thereby wants to coerce the Objectors who are related to the Judgment Debtor/its Directors. This court ought not to be made privy to such practices. Civil Revision No. 3417 of 2010 (O&M) -6- 18. It is incumbent on a person seeking attachment of any property to state on oath that the Judgment Debtor has attachable interest therein. If found otherwise, such person is liable to the person whose property has been so attached, for wrongful attachment Section 95 CPC is only qua defendant in a suit. No provision is found qua a non party to the suit. However, once it is found that wrongful attachment is actionable, such person cannot be remedyless. In my view, such remedy ought not to be left to be by way of a separate proceeding. An injury caused by litigation ought not to be left to be redressed in a separate litigation and in so far as possible, amends should be made in the same litigation. Unless it is so done, litigants would not hesitate in causing such injury to other, secure in the belief that the other is unlikely to commence another litigation for such redressal. Courts are meant for adjudication of bonafide conflicts and not for causing injury to the other by merely involving in litigation. 19. The privy council as far back in Kissori Mohan Roy v. Harsukhdas ILR XVII Cal 436 held that no finding of malice or want of reasonable care is necessary in case where the property of a person who is not a party to the suit is wrongfully attached. The same view is taken in Bank of India v. Lakshimani Dass (2000) 3 SCC 640. Having found that the Decree Holder in the present case to have wrongfully obtained attachment of the property of the Objectors and persisted in the same, the Decree Holder has become liable.” On consideration, I find no force in the contention raised by the learned counsel for the petitioners. The judgment relied upon by the petitioners is not on the issue involved in this case, therefore, not relevant. Once, it is not disputed that the transfer was made by the Civil Revision No. 3417 of 2010 (O&M) -7- father in favour of sons during the pendency of the suit, it was prima facie proved that the transfer was fraudulent so as to defeat the rights of the decree-holder. Furthermore, in this case, the Court on appreciation of evidence, did not accept the plea that the property was ancestral coparcenary property. In view of the findings, the order passed by the learned executing Court deserves to be upheld. The contention of the learned counsel for the petitioners that they are prepared to pay their share of the decretal amount also cannot be accepted, as the decree passed is joint and several, therefore, it is for the decree-holder to execute the decree against any of the judgment- debtors. The judgment-debtors after payment will have a remedy in accordance with law, but offer of payment of share of decretal amount cannot be a ground to interfere with the rejection of objections under Order 21 Rule 58 of the Code of Civil Procedure. No merit. Dismissed. (Vinod K. Sharma) Judge July 12, 2010 R.S.