FAO No.239 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.239 of 2009 (O&M) DATE OF DECISION: 13.09.2010 **** M/s Jain Solvex & Export Industries Kapurthala . . . . Appellant VS. Punjab State Warehousing Corporation, Chandigarh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Padam Jain, Advocate for the appellant. Mr.Harsh Aggarwal, Advocate for respondent No.1. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is directed against order of the learned District Judge, Kapurthala dated 15.11.2008 by which objections filed by the appellant under Order 21 Rule 58 of the Code of Civil Procedure, 1908 (for short ‘CPC’) has been dismissed. In brief, there was an agreement dated 27/28.09.2001 between Punjab State Warehousing Corporation, Chandigarh (for short ‘the Corporation’) and M/s Jain Rice & General Mills, Kapurthala (for short ‘ the Mill’) as per which the Corporation was to supply paddy to the Mill for the purpose of milling. There was a dispute between the parties which was referred to the Sole Arbitrator, who vide his ex parte award dated 16.12.2005 allowed the claim set up by the Corporation to the tune of `6,55,864/- apart from the interest. FAO No.239 of 2009 (O&M) - 2 - The Corporation filed an application under Order 21 Rule 66 of the CPC, in order to execute the award on 03.05.2006, in the Court of District Judge, Kapurthala. In the said execution, the property of the Miller was ordered to be attached. The appellant then filed an objection petition under Order 21 Rule 58 of the CPC alleging therein that the attached property namely 12 kanals 1 marlas comprising of Khewat Khata No.297/750 Khasra No.24//7/3(1-19), 14/2 (3-4), 15 (7-11) situated at Village Sheikhpur Tehsil and District Kapurthala is owned by them. The said objection was contested by the Corporation by filing reply in which it was alleged that the appellant in connivance with the revenue officials/officers have changed the entries of the revenue record in favour of objector/appellant so that the decree should not be executed. Although, the facts were disputed but without framing any issue, the learned Executing Court dismissed the objection petition vide its impugned order dated 15.11.2008 and put up the property in dispute for sale. Aggrieved against the said order, present appeal has been filed in which learned counsel for the appellant has strenuously argued that the learned Executing Court has committed an error of law in dismissing the objections in a summary manner without framing any issues. He has referred to Order 21 Rule 58(2) of the CPC which provides that all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this Rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. After hearing learned counsel for the parties, I am of the view that the learned Court below should have at least framed relevant issues arising out of the pleadings of the parties and should have allowed the parties to lead evidence in support of their case because the case set up by the defendant is that objections filed on behalf of the appellant is not maintainable as he had purchased the suit property after passing of the award but before the decree FAO No.239 of 2009 (O&M) - 3 - could have been executed. He has referred to Order 21 Rule 102 CPC which says that objections are not maintainable under Rule 98 and 100 if the property is purchased during the pendency of the suit. Order 21 Rule 102 of the CPC have the trappings of Section 52 of the Transfer of Property Act, 1882 which provides that Transferee pendente lite would have no right to question the order which is passed against the transferee. Section 52 of the Transfer of Property Act, 1882 also provides that transfer pendente lite would continue until and unless the decree is fully satisfied. In the present case, the execution is still pending, therefore, the question as to whether the transfer by the Mill to the present appellant after the award but before the execution could have been executed is a transfer pendent elite, has to be decided by the learned trial Court but after framing appropriate issues and granting opportunity to both the parties to lead their respective evidence because as per Order 21 Rule 58 (2) of the CPC separate suit is clearly barred. In view thereof, the impugned order is set aside and matter is remanded back to the learned Executing Court/Court of District Judge, Kapurthala to decide objections under Order 21 Rule 58 of the CPC filed by the appellant, in accordance with law much less after framing relevant issues arising out of the pleadings and giving the parties reasonable opportunity to lead their evidence. The parties are directed to appear before the Executing Court on 11.10.2010. Since a money decree is sought to be executed, therefore, it is expected that the learned Executing Court would decide the lis between the parties as soon as possible preferably within a period of one year from the date of appearance of the parties before it. (RAKESH KUMAR JAIN) SEPTEMBER 13, 2010 JUDGE Vivek