C.R. No. 37 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 37 of 2009 Date of Decision: 23.09.2010 Ram Kishan .... Petitioner Versus Surinder Kumar and another ... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. Sandeep Jain, Advocate for the petitioner Mr. Vijay Lath, Advocate and Mr. Naveen Sharma, Advocate for respondent No. 2 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ALOK SINGH, J. (ORAL) 1. Present petition is filed challenging order dated 16.9.2008 passed by Civil Judge (Sr. Divn.) Nawanshahr thereby allowing the objections filed by respondent No. 2 herein under Order 21 Rule 58 CPC. 2. The brief facts of the present case inter alia are that plaintiff -decree holder preferred a suit for recovery of Rs. 86,000/- against the judgment debtor on the basis of pronote and receipt pronote dated 9.7.1998. Suit for recovery of Rs. 86,000/- was decreed by the trial Court vide judgment and decree dated 29.11.2004 and execution was carried out by the decree holder. In the execution judgment debtor appeared but after few dates he C.R. No. 37 of 2009 2 stopped appearing in the Executing Court. Learned Executing Court vide order dated 1.11.2007 directed attachment of the house of the judgment debtor, thereafter, house in question was auctioned on 28.1.2008. Respondent No. 2 herein thereafter preferred objections before the Executing Court contending therein that house was owned by Smt. Jaswinder Kaur wife of Surinder Kumar – Judgment debtor and she had sold the house in question to the objector Bachan Singh vide registered sale deed dated 25.7.2007 for consideration of Rs. 1,85,000/-. The further contention of the objector was that since house was not owned by JD and had already been purchased by objector from the wife of the JD, hence, auction and auction sale are null and void. Learned Executing Court has allowed the objections filed by respondent No. 2 herein vide impugned judgment which is under challenge on the petition of the decree holder. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner-decree holder argued that in a suit filed by the decree holder – plaintiff, an order dated 10.7.2001 was passed by the Civil Court restraining the defendant/judgment debtor not to alienae the house in question during the pendency of the suit. Learned counsel for the petitioner- decree holder further argued that infact Surinder Kumar - Judgment debtor is the owner and his wife was not the owner. Learned counsel for the petitioner further argued that after ad interim injunction dated 10.7.2001 judgment debtor or his wife were not entitled to sell the property. He further stated that by way of injunction order dated 10.7.2001 a charge was created on the C.R. No. 37 of 2009 3 property in question, hence, any sale after the injunction order is void. Learned counsel for the petitioner states that none of these points were considered by the Executing Court while allowing the objection petition. Learned counsel for the respondent stated that Surinder Kumar – judgment debtor was not the owner of the house rather wife of Surinder Kumar was the true owner of the property in question. It is further contended that Smt. Jaswinder Kaur was not a party in a suit filed by decree-holder, hence, any injunction order passed against Surinder Kumar was not binding on his wife. It is further argued by learned counsel for the respondent that sale deed was executed by Jaswinder Kaur on 25.7.2007 prior to the attachment order passed in the execution. He further stated that on the date of auction order neither judgment debtor nor his wife were owner of property in dispute and objector is a bonafide purchaser of the house in dispute prior to the auction in question. Learned counsel for the respondent further stated that since auction is bad hence sale is also bad. He further states that recovery of amount pursuant to the decree can be made from the properties of the judgment debtor and not from the properties owned by wife of the judgment debtor which was previously transferred to the objector. Both the learned counsel for the parties appearing before me fairly stated that while passing the impugned order learned Executing Court has not framed any issued/point of determination on the basis of contentions raised before the Executing Court as well as before this Court. Both the learned counsel for the parties fairly stated that C.R. No. 37 of 2009 4 present petition be disposed of with their consent in the following terms:- (i) Order impugned shall stand quashed. (ii) Both the parties shall appear before the Executing Court on 6.10.2010. (iii) Learned Executing Court shall frame points of determination in the light of contentions raised by both the parties before this Court and all the contentions raised before this Court shall also be placed before learned Executing Court in the form of respective affidavits before the date fixed. (iv) Learned Executing Court shall decide the objections after framing points of determination as stated above at the earliest preferably within six months from the date certified copy of this order is placed before the trial Court. Petition stands disposed of with the consent of learned counsel for the parties in the above terms. (ALOK SINGH) 23.09.2010 JUDGE reena