ESA No.676 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ESA No.676 of 1984 Date of Decision: 17.9.2008 Balraj Mahajan and others .....Appellants Vs. Smt.Shakuntla Devi and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.K. Chhibbar, Sr.Advocate with Ms.Simranjit Chahal, Advocate for the appellants. .... RAJIVE BHALLA, J The appellants, challenge an order dated 13.1.1984 passed by the District Judge, Amritsar, accepting the appeal against an order passed by the Executing Court, namely, the Sub Judge, Ist Class, Amritsar dated 30.11.1983. Counsel for the appellants submits that a judgement debtor cannot file objections, to an attachment, under Order 21 Rule 58 of the Code of Civil Procedure (hereinafter referred to as `the Code'). Objections filed by a judgement debtor, whatever their nomenclature would be deemed to be objections, under Section 47 of the Code and, therefore, not appealable. Shakuntla Devi a judgement debtor to the attachment, filed objections under Order 21 Rule 58 of the Code. The Executing Court dismissed these objections. The order passed by the Executing Court would be deemed to be an order passed under Section 47 of the Code and,therefore, not appealable. As a result, the learned District Judge, Amritsar, had no jurisdiction to entertain the appeal. It is further ESA No.676 of 1984 2 submitted that Section 104 of the Code and Order 43 Rule 1 do not provide for an appeal against an order passed under Section 47 of the Code and, as the appeal before the learned District Judge was not maintainable, the impugned order is without jurisdiction. Reliance is placed upon Rocky Tyres, Chandigarh and others V. Ajit Jain and another, AIR 1998 Punjab and Haryana 202, for the argument that an Executing Court shall obliged to decide all controversies, which arise between the parties under the provisions of Section 47 of the Code. For the proposition that the attachment can only be impugned by way of objections under Section 47 of the Code, reliance is placed upon Merla Ramanna V. Nallapa raju and others, AIR 1956 SC 87, Sansar Chand Mela Ram V. Sham Lal Dhanpat Rai and another, AIR 1957 Punjab 307, Mohan Lal Mahto V. Shibdhari Chaube and another, AIR (29) 1942 Patna 146 and Smt.Saida Begam V. Sabir Ali, AIR 1962 Allahabad 9. For the proposition that an order passed under Section 47 of the Code does not amount to a decree and is not appealable, reliance is placed upon Pratap Narain Agarwal V. Ram Narain Agarwal and others, AIR 1980 Allahabad 42 and Guntupalli Rama Subbayya V. Guntupalli Rajamma, AIR 1988 Andhra Pradesh 226. In order to appreciate the arguments urged by counsel for the appellants, it would be appropriate to set out the facts of the present case. Balraj Mahajan and Champa Devi had two sons, Vinod Kumar Mahajan and Ranjan Mahajan. Kharaiti Lal and Shakuntla Devi had two sons Bharat Bhushan and Pawan Kumar. The two families are referred to herein after as the Balraj Mahajan group and the Kharaiti Lal. They owned three partnership firms. A dispute between the two groups was referred to an ESA No.676 of 1984 3 Arbitrator. On 21.5.1977, the Arbitrator pronounced its award. The award was made a rule of the Court and eventually, an execution petition was filed. During the execution proceedings, certain properties were attached. Shakuntla Devi w/o Kharaiti Lal, filed objections under Order 21 Rule 58 of the Code alleging that the attached property was her sole and exclusive property and could not be attached. The appellants opposed the prayer by asserting that the attached property was the benami property of Kharaiti Lal. The Executing Court, dismissed the objections by holding that the attached property was purchased by Kharaiti Lal in the name of Shakuntla Devi, his wife. Smt.Shakuntla Devi, filed an appeal. The District Judge, Amritsar, accepted the appeal, set aside the order of attachment and the order dismissing the objections by holding that the attached property was the sole and exclusive ownership of Shakuntla Devi, as she had purchased it through a registered sale deed. It was also held that as the appellants had failed to establish the benami nature of the sale deed, the property was not liable to attachment. As noticed herein above, counsel for the appellants has raised a plea that as Shakuntla Devi, belonged to the Kharaiti Lal group, she was a judgement debtor and her objections filed under Order 21 Rule 58 of the Code, would be deemed to be objections filed under Section 47 of the Code and, therefore, not appealable. The submissions in law disregard a fact that Shakuntla Devi though belonging to the Kharaiti Lal group was not fastened with any liability. A relevant extract of the award reads as under :- ESA No.676 of 1984 4 “1. XXX XXX XXX 2. Stocks for the value of Rs.28676/- belonging to Messrs Tiger Textile Traders have been pledged by Shri Kharaiti Lal in Punjab National Bank, Batala Road, Amritsar in the account of Messrs Deepak Trading Company. Shri Kharaiti Lal shall get these goods released from the Bank within 15 days hereof and deliver the same to Shri Balraj Mahajan group or to Shmt.Champa Devi, who was partner in Messrs Tiger Textile Traders. In case he fails to do so Smt.Champa Devi will be entitled to recover this amount of Rs.28,676/- with interest at the rate of 18 percent to be reckoned from this date from Sh.Kharaiti Lal. 3. Shri Kharaiti Lal shall also pay Rs.3678/- within a week of this award to Sh.Balraj Mahajan; 4. There is a credit of Rs.10,000/- in the name of Messrs R.K. Vinod Kumar in the books of Messrs Tiger Textile Trader. In case this amount is recovered by that party from Shmt.Champa Devi, she will be entitled to recover 50 percent from Shri Bharat Bhushan son of Shri Kharaiti Lal. 5. XXX XXX XXX” A perusal of the above extract discloses that liability to satisfy the award was fastened upon Kharaiti Lal or his son Bharat Bhushan and not upon Shakuntla Devi. As the award does not fasten any liability ESA No.676 of 1984 5 upon Shakuntla Devi, it would be difficult to accept the arguments raised that merely because Shakuntla Devi belonged to the Kharaiti Lal group, she was a judgement debtor and, therefore, her objections, filed under Order 21 Rule 58 of the Code, would be deemed to be objections under Section 47 of the Code and, therefore, not appealable. Shakuntla Devi, a stranger to the decree was entitled to and rightly filed objections under Order 21 Rule 58 of the Code. The objections were dismissed by holding that Shakuntla Devi had failed to establish that the property purchased by her, pursuant to a sale deed was not the benami property of Kharaiti Lal. Order 21 Rule 58 sub-rule (4) provides that where any claim or objection has been adjudicated under Order 21 Rule 58 of the Code, the order shall be subject to the same conditions as to appeal as if it were a decree. The appeal, filed before the District Judge was, therefore, maintainable. In the appeal, the learned District Judge rightly reversed the said order, as the Executing Court, failed to appreciate that the onus to establish that the sale deed was a benami transaction, lay upon the present appellants. The learned District Judge also held that there was no evidence to hold that the property purchased by Shakuntla Devi in the year 1961 was a benami property of Kharaiti Lal. In view of what has been stated herein above, as Shakuntla Devi was a stranger to a decree, she was entitled to protect her property by filing objections under Order 21 Rule 58 of the Code. As an order passed under Order 21 Rule 58 of the Code is appealable as a decree and, therefore,the appeal filed before the District Judge was maintainable. No other point has been urged. ESA No.676 of 1984 6 Dismissed with no order as to costs. .9.2008 (RAJIVE BHALLA) GS JUDGE