1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil (Execution) Second Appeal No.2/2009. (Smt. Afzal Begum Vs. S.B.B.J. & Another) DATE OF JUDGMENT : May 8th, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. N.K. Rastogi for the appellant. BY THE COURT : Instant second appeal has been filed under Section 100 C.P.C. against the judgment dated 03.02.2009 passed by the District Judge, Chittorgarh in Civil Appeal No.31/2008, by which, the appellate Court rejected the appeal and affirmed the judgment dated 06.11.2008 passed by the Civil Judge (Sr. Dn.), Chittorgarh in Civil Misc. Case No.12/2003, by which, the learned Civil Judge rejected the objection petition filed by the appellant under Order 21 Rule 58, C.P.C. 2 Brief facts of the case is that the respondent State Bank of Bikaner & Jaipur, Branch Chittorgarh (decree holder) filed suit against respondent Faiyaz Khan for recovery of the loan amount which is said to be granted to Faiyaz Khan being unemployed person under Self- Employment Scheme by the Bank. Faiyaz Khan was granted loan on 27.03.1997. He mortgaged the stock of stone purchased by him from the said loan. When Faiyaz Khan failed to repay the loan amount, then, suit for recovery was filed by the Bank. The learned trial Court decreed the suit in favour of the Bank vide judgment dated 22.09.2000. Thereafter, execution petition for recovery of the decretal amount was filed, in which, prayer was made for auction of residential house of Faiyaz Khan. In the execution proceedings, however, objection petition was filed under Order 21 Rule 58, C.P.C. by the appellant for removal of the attachment and auction sale of the property on the ground that the property in question was given to her by her husband, late Anwar Khan by executing a will in her favour and, therefore, the appellant alone is the owner of the property in question and property in question was purchased by late Anwar Khan through registered sale-deed. The learned trial Court on the basis of the pleadings 3 of the parties framed three issues including the issue of relief; and, thereafter, proceeded to record statements. The learned trial Court has held that the appellant objection-petitioner has failed to prove the fact that how the property in question came into her possession. The trial Court categorically observed in the judgment/order that there is no pleading regarding the alleged will in the application and will Ex.-1 itself appears to be a suspicious document because it was attested after eight months of its execution. Further, it is held by the trial Court that the legal heirs of late Anwar Khan have not given their consent, therefore, the will was held to be invalid. In that view of the matter, the learned trial Court as well as lower appellate Court rejected the objection petition filed by the appellant. In this second appeal, both the aforesaid judgments are under challenge. Learned counsel for the appellant argued that there is will executed by late Anwar Khan, husband of the appellant but the learned trial Court has illegally rejected the appellant's contention that there is valid will in her favour executed by her husband late Anwar Khan. Learned counsel for the appellant further argued that as per the judgment of the Hon'ble Supreme Court, 4 attestation of will under the Mohammedan Law is not required. Unattested will can be admitted in evidence. For the said proposition, learned counsel for the appellant invited my attention to the judgment reported in AIR 1952 M.P. 56, Ramji Lal Vs. Ahmed Ali. Similarly, for the purpose of right up to one-third share of the property, learned counsel for the appellant invited attention of the Court towards the judgment in the case of Anar Ali Tarafdar Vs. Omar Ali & Others, reported in AIR 1951 Calcutta. Lastly, learned counsel for the appellant cited the judgment of the Supreme Court reported in 2007 DNJ (SC) 365, Sai Enterprises Vs. Bhimreddy Laxmaiah & Another, in which, it is held by the apex Court that for the recovery of decretal amount the compliance of the mandatory requirement of the Court to satisfy to sale only such portion as is necessary to satisfy the decree must be made and the impugned auction sale was held to be illegal and without jurisdiction. Learned counsel for the appellant vehemently argued that both the Courts below have committed error while not accepting the will executed in her favour by her husband late Anwar Khan. So also, up to the extent of one-third share of the property the appellant is entitled as per Muslim Law, therefore, both the Courts below have 5 committed error while rejecting the objection raised by the appellant under Order 21 Rule 58, C.P.C. It is admitted position of the case that there is no assertion in the application under Order 21 Rule 58, C.P.C. with regard to execution of the alleged will in favour of the appellant. In all, three grounds were taken by the appellant. Firstly, as per para 9 of the judgment of the trial Court it is claimed by the appellant that the property in question was given by late Anwar Khan as mehar in the marriage solemnised between her and late Anwar Khan. Secondly, there is will executed in her favour by late Anwar Khan. Lastly, though Faiyaz Khan (respondent No.2) is son of late Anwar Khan but she is in possession of the property in question at the strength of the will executed in her favour. I have considered the arguments advanced by learned counsel for the appellant and also perused the judgments cited before the Court. First of all, according to the facts of the case, in the application filed by the appellant under Order 21 Rule 58, C.P.C. it is nowhere stated by the appellant that any will was executed in her favour by late Anwar Khan; but a document Ex.-1, will was produced before the Court which is said to be executed by late Anwar Khan on 19.06.1996. 6 The learned trial Court, in para 7, has observed that though there is no assertion in the objection application filed by the appellant but upon perusal of Ex.-1, will filed by the applicant along with application, it appears that stamp was purchased on 02.02.1996 and will was executed on 19.06.1996 and the same was verified by the Notary Public on 05.02.1997. The learned trial Court while considering the statement and evidence produced before the Court arrived at the finding that the said will Ex.-1 is suspicious document. Likewise, it rejected the plea of getting the property in question as mehar in the marriage. It has been held that no such assertion has been made in the objection application, therefore, when there is no pleading with regard to the said will or getting the property in question in mehar in the objection application filed by the appellant, there is no substance in the argument of the learned counsel. In this view of the matter, the judgments cited by learned counsel for the appellant are not applicable to the facts and circumstances of the present case. The appellant has tried to raise all the grounds available under the law without there being any pleadings in the application to set out the facts. Such type of application by way of raising objection under Order 21 Rule 7 58, C.P.C. is totally improper. Moreover, such a vague application which does not contain any facts upon which relief is being sought has rightly been rejected by the trial Court because for claiming something the applicant is required to set out the case. The learned trial Court as well as appellate Court rightly observed that without any pleading in the application grounds advanced at the time of arguments alone cannot establish a fact and have no force of law. Similarly, even if the document which is exhibited as Ex.-1, will filed by the appellant is scanned, it will reveal that it is a suspicious document because the date of purchase of the stamp is 02.02.1996 and it is executed on 19.06.1996 and, further, it was verified by the Notary Public on 05.02.1997 and there is no cogent evidence produced on record to prove the correctness of the will which is said to be executed in favour of the appellant by late Anwar Khan. Likewise, there is no pleading in the application with regard to claim of the one-third share in the property even if the will had not been exeucted by her husband late Anwar Khan. In this view of the matter, there is no material on record to show any perversity in the finding arrived at by the Courts below. Hence, there is no force in this second execution appeal filed under Section 8 100, C.P.C. This second appeal is, therefore, accordingly dismissed. (Gopal Krishan Vyas) J. Ojha, a.