E. S. A. No. 18 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : E. S. A. No. 18 of 2008 Date of Decision : February 23, 2011 Tarun Mehta and another .... Appellants Vs. Sukhjinder Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vikas Kumar, Advocate for the appellants. Mr. I. S. Brar, Advocate for respondent no.1 – decree holder (DH). Mr. Peeyush Gagneja, Advocate for respondent no.2 – judgment debtor (JD). Mr. J. S. Brar, Advocate for respondent no.3 – auction purchaser. * * * L. N. MITTAL, J. (Oral) : This is second appeal in execution proceedings. Decree was passed against Baldev Raj @ Baldev Ram – respondent no.2 herein (JD) in favour of Sukhjinder Singh – respondent no.1 herein (DH), for recovery of Rs.4,98,000/- with interest @ 12% per annum on the principal amount of Rs.3,00,000/- from the date of institution of the suit till realization of the decretal amount. In the execution proceedings, 32 kanals 02 marlas land E. S. A. No. 18 of 2008 2 was attached for recovery of the decretal amount. Appellants herein, who are sons of JD, filed objection petition alleging that the attached land was ancestral in the hands of JD and therefore, appellants/objectors, being his sons and coparceners, have share therein. DH resisted the objection petition by alleging that the land was self-acquired property of JD. Learned Executing Court i.e. learned Civil Judge (Senior Division), Sirsa, vide impugned order dated 29.07.2008, dismissed the objection petition. Appeal against the said order preferred by the objectors has been dismissed by learned Additional District Judge, Sirsa vide impugned judgment dated 22.10.2008. Feeling aggrieved, objectors have filed the instant execution second appeal. I have heard learned counsel for the parties and perused the case file. Plea of the appellants that the attached land was ancestral coparcenary property in the hands of JD is unacceptable because the objectors themselves have pleaded that JD got the attached land from his father Shanu Ram vide judgment and decree dated 19.05.1988, as also revealed by mutation sanctioned on the basis of said judgment and decree. Consequently, JD did not inherit the suit land from his father and the same, therefore, cannot be said to be ancestral coparcenary property in his hands qua the objectors/appellants. E. S. A. No. 18 of 2008 3 In addition to the aforesaid, the objections were filed after auction of the attached land had been effected and the auction purchaser had even deposited the sale price. Auction was effected on 31.08.2007 and auction purchaser deposited the remaining sale price on 11.09.2007. Consequently, objections against attachment filed thereafter are not maintainable in view of proviso (a) to Order 21 Rule 58 (1) of the Code of Civil Procedure. It is also worth mentioning that decree has already been passed against respondent no.2. Consequently, it is pious duty of the appellants also to satisfy the said decree being debt due from their father, who is said to be `Karta' of the joint Hindu family. For this reason also, the objections preferred by the appellants cannot be accepted. Learned counsel for the appellants also contended that entire land should not have been sold for satisfying the decree as part of the attached land would have satisfied the decree. The contention cannot be accepted. The decretal amount was Rs.4,98,000/- plus pendente lite and future interest @ 12% per annum from the date of filing of suit till recovery. Suit is said to have been filed on 10.09.2003. Consequently, till date of auction i.e. 31.08.2007, a sum of Rs.1,44,000/- approximately, by way of pendente lite and future interest, was also added to the decretal amount of Rs.4,98,000/- and cost amount of Rs.24,333/-. So, the total decretal amount recoverable under the decree was Rs.6,66,000/- approximately. The E. S. A. No. 18 of 2008 4 attached land has been sold for Rs.8,00,000/-. Consequently, it cannot be said that highly excessive land has been sold for recovery of the decretal amount. Before auction, exact area sufficient to satisfy the decree could not be known. In any event, the auction amount is not highly excessive vis-a- vis the decretal amount. Consequently, the sale is not vitiated on this ground. In addition to it, on the request of respondent no.2-JD, he was permitted to sell 08 kanals land out of the attached land to satisfy the decretal amount and also to compensate the auction purchaser. He was given six months to do so, as prayed for by him vide order dated 12.05.2010. The case was adjourned to 19.11.2010. However, respondent no.2-JD failed to do the needful. Again on 19.11.2010, further period of three months was granted on the request of respondent no.2-JD and the case was adjourned for today, but again, the needful has not been done. Today, learned counsel for respondent no.2 sought further time of two months to sell 08 kanals of the land out of the attached land to satisfy the decree and also to compensate the auction purchaser. The said prayer was being accepted on the condition that if the needful is not done within the next two months, the Executing Court shall proceed with the execution and the appeal shall stand dismissed. However, learned counsel for the appellants and respondent no.2 are not agreeable to the same. It is thus apparent that prayer made on 12.05.2010 and on 19.11.2010, for permission to sell 08 kanals land out of the attached land, was made with mala fide intention and E. S. A. No. 18 of 2008 5 oblique motive without having any intention to satisfy the decree by sale of 08 kanals land out of the attached land. Today, further time was being bought by seeking extension of two months, but when the said prayer was being accepted conditionally, appellants and respondent no.2 backed out. For this added reason as well, the aforesaid contention cannot be accepted because it is apparent that the decree cannot be satisfied by sale of 08 kanals land, as sought by the appellants and respondent no.2. On the other hand, auction purchaser has already deposited the amount almost 3½ years ago and the sale has not been confirmed on account of pendency of objections and first appeal and now, the second appeal. The auction purchaser is suffering without any fault on his part. It is thus manifest that objections preferred by the appellants have been rightly dismissed by the courts below being devoid of any merit. On the other hand, the objections were apparently preferred by the appellants in connivance and collusion with their father respondent no.2- JD. Even during the pendency of the instant second appeal, time was sought and wasted just to prolong the litigation causing avoidable irreparable loss to the auction purchaser and the decree holder. There is no illegality in the impugned orders of the courts below. The instant second appeal is completely devoid of merit and is accordingly dismissed. February 23, 2011 ( L. N. MITTAL ) monika JUDGE