ESA No. 4 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ESA No. 4 of 2008(O&M) Date of Decision: March 12, 2010 Kanta Jain ...... Appellant Versus State Bank of India and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Alok Jain, Advocate for the appellant. Mr. Y.K.Sharma, Advocate for respondent No.1. **** 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? Ajay Tewari, J. This appeal has been filed against the order of the learned Additional District Judge dismissing the appeal of the appellant on the ground of it being not maintainable. The brief facts are that the respondent No.1 had obtained a decree dated 23.06.1982 for recovery of Rs. 2,58, 056.13 ps. with future interest at the rate of 6% p.a. and costs against the husband of the appellant. By order of the Executing Court one room in the property owned by the husband of the appellant and his mother was attached. Against that the mother of the husband of the appellant filed objections praying for setting ESA No. 4 of 2008(O&M) 2 aside of that attachment. The plea taken by her was that she had earlier renounced the world and had given the property by 'will' in favour of her grand son, the son of the appellant. Now when she came to her home to spend her last days she came to know of the attachment which she had challenged. It may be mentioned here that earlier also the son of the appellant-acting on the 'will' of his living grand mother-had filed objections which were ultimately dismissed by this court vide CR No. 2093 of 1994 decided on 7.9.2001. The said petition was dismissed in the following terms:- “Having heard counsel for the parties this court is of the opinion that the contentions “raised by the counsel for the petitioners are misconceived. Only an attempt is being made not to discharge the liability by raising frivolous pleas at one stage or the other. It has been found as a matter of fact by the executing Court below that the property/room is a godown and not an integral part of the house of Shri Kul Bhushan Jain. It has further been found as a matter of fact by the executing court below that when the property was ordered to be attached, it was still under the possession of one tenant Shri Ram. So under these circumstances, the petitioner is not entitled to get any benefit out of the provisions of Section 60(1)(ccc) C.P.C. So far as the argument of Shri Jain regarding the existence of septic tank underneath the floor of the disputed property is concerned, sufficient protection has already been given to the petitioner by the executing Court by saying that the rights sold in the property would be subject to any septic tank which is existing underneath the same.” The said observation was made despite the fact that the respondent-decree holder even disputed the existence of the septic tank as alleged by the petitioner- judgment debtor. To what extent the petitioner can go to delay the execution proceedings is apparent when he even denied the ESA No. 4 of 2008(O&M) 3 ownership of the property in dispute before the executing Court. This fact is apparent from para No. 18 of the order dated January 31, 1994. The present revision petition is without any substance and as such the same is dismissed with costs which are quantified at Rs. 10,000/-to be paid to the respondent- decree-holder.” It may also be mentioned that in that case this court had also mentioned as follows:- “On 23rd June, 1982 the Court of Subordinate Judge, Guntur (Andhra Pradesh) passed a decree for recovery of an amount of Rs.2, 58, 056.13 paise with future interest at the rate of 6% per annum against the petitioner. After the lapse of more than 19 years, the Bank is still in litigation to recover the public money. The present revision petition also shows the attitude of a person who after incurring the liability/raising a loan is trying his level best not to repay the same by adopting all possible means at his command. This attitude became apparent when during the course of arguments an offer made by the respondent-Bank to recover the amount with future interest at the rate of 3% per annum was declined by the counsel for the petitioner after seeking necessary instructions from him.” Even today it is not disputed that not even a single penny has been paid under the decree. Learned counsel has argued that against an order on an application under Order 21 Rule 58 CPC appeal lies and thus the dismissal of the appeal on the ground of maintainability by the learned Lower Appellate Court was completely illegal. Considering the stark facts brought out above I invited learned counsel to argue the case even as a first appeal so that in case he could show any substantial injustice in the order of the executing Court, the matter would, if necessary be remanded back. It is in these circumstances that this ESA No. 4 of 2008(O&M) 4 Court is examining the order of the executing Court. Even in the objections the allegations were the same as were made by her grand son. Again it was pleaded that the property was not under the tenancy of Shri Ram. Again it was pleaded that the room is an integral part of the residential house. Again it was pleaded that there was a septic tank underneath the floor of the room. Again it was pleaded that K.B.Jain (husband of the appellant) was owner of the property only as a co-sharer. Apart from that it also has to be noticed that during the pendency of the objection petition the objector viz.mother- in-law of the appellant died and she is now being represented by the appellant and her husband. However, this appeal has been filed only by the wife, the husband having conveniently avoided to join the same. The learned trial court has also noticed that even the objections filed by the husband were dismissed by this court with costs of Rs.2000/-. After discussing the voluminous evidence the learned Court ,noticing the similarity of the objections filed by the grand son and the grand mother, dismissed the objections. It may be noticed that the son-JD had made a statement on 29.1.1994 that he had no concern with the property which had been attached while in the objection petition the plea taken was that mother and son were co-owners. The Court also found on evidence that on the date of attachment the room was under a tenant and thus outside the exemption of Section 60(1)(ccc). The Court also found that all these issues have been previously adjudicated right up to this Court. Consequently the objections were dismissed. Learned counsel has vehemently argued that even if this Court was to examine the judgment of the executing Court, it would be unjust to the appellant since he would be deprived of the option of filing a second ESA No. 4 of 2008(O&M) 5 appeal and in the circumstances the only possible course for this Court is to remand the case for fresh decision on the merits of the appeal. As mentioned above in my opinion even if technically the order of the Appellate Court is wrong, yet it is the duty of this Court to be at least prima facie satisfied that the appellant is seeking to make out even an arguable case. As mentioned above the pleas taken in the present objection petition were also taken by the grandson and have been negatived right up to this court. The present is a graphic example of the classic adage that in India the problems of a person start once he is successful in getting a decree. In these circumstances even though the question of law proposed is answered in favour of the appellant yet the appeal as well as the application for stay are dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE March 12 , 2010 sunita