Case: Maya Devi Vs. Lalta Prasad

(i) the actual owner of the suit property having purchased it for valuable consideration, and (ii) being a third party not connected in any mala fide manner with the Judgment Debtor, and (iii) not having received prior notice of any action of late Shri Prem Chand Verma, was imperious to Execution proceedings. A miscarriage of justice, of monumental proportions, has taken place on an un-substantiated presumption that one of the assets of the Judgment Debtor had been illegally transferred to defeat the decree. The Appellant before us had no other recourse than to file Objections under Order XXI Rule 58 CPC.18. Finally another aspect which has come to the fore, is the approach of the Trial Court in the adjudication of the suit. The plaint contains an averment that the suit property had already been sold. The Defendant Shri Prem Chand Verma, (his wife Smt. Nirmal Verma was not impleaded) had appeared in the Trial Court and filed his Written Statement in which, whilst admitting the documentation executed between the parties, he had denied that he had been served with any legal notice and set up the defence that he was entitled to forfeit the amount received by him because the Plaintiff/Decree Holder had failed to pay the balance sale consideration as envisaged in the Deed of Agreement for Earnest Money. After filing his Written Statement he stopped appearing, and the suit proceeded ex-parte. Significantly, the Deed of Agreement for Earnest Money as well as the Written Statement predicate Defendant’s title on a Will, and in this context there is no evidence on record that it had taken effect because of the death of the Testator. In the event, as is to be expected, no appeal against the judgment and decree came to be filed, and, therefore, the decision was not tested before or scrutinized by the Appellate Court. The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of the Plaintiff’s claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha vs Tata Engineering and Locomotive Company Limited, (2013) 4 SCC 396 , will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the CPC into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 CPC and on the invocation of Order IX of the CPC, the Court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted. .19. I am fully mindful of the fact that the Appellant has not taken any steps for setting aside the ex parte decree against late Shri Prem Chand Verma. This is only to be expected since the Appellant/Objector has no reason to evince or harbour any interest in the inter se dispute between the Decree Holder and the Judgment Debtor. Indeed, if the Appellant had made any endeavour to assail or nullify the decree, it would be fair to conclude that she had been put up by the Judgment Debtor in an endeavour to defeat the decree. In these circumstances, my in-depth analysis of the law pertaining to decreeing what is essentially a penalty clause may, on a perfunctory or superficial reading, be viewed as non essential to the context. This, however, is not so. On a conjoint reading of Order XXI Rule 58 CPC and the fasciculus of Order XXI comprising Rules 97 to 104, it becomes clear that all questions raised by the Objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the Execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order XXI proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the Court. Objection under Order XXI should be meaningfully heard so as to avoid the possibility of any miscarriage of justice. It is significant in this regard that Rule 103 ordains that where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise, as if it were a decree. I shall only advert to the decisions of this Court in Brahmdeo Chaudhary vs Rishikesh Prasad Jaiswal, (1997) 3 SCC 694 , Shreenath vs Rajesh, (1998) 4 SCC 543 , and Tanzeem-e-sufia vs Bibi Haliman, (2002) 7 SCC 50 , where proceedings were under the aforesaid fasciculus of Order XXI comprising Rules 97 to 104, in which the Objectors had set up a title distinct or different from that of the Judgment Debtor and the Court had protected their interest. The Appellant before us is a third party and has been brought into the lis by a side wind in that her property is sought to be attached with the intention of satisfying a decree in which she was not directly or intrinsically concerned. 20. The Appellant/Objector who has approached the Court under Order XXI Rule 58 is more advantageously or favourably placed inasmuch as she is a third party so far as the decree is concerned, and her property is not the subject-matter of the decree. It is thus clear to me that the Courts below have in a hurried, if not prejudiced manner, rejected the Objections merely because of some sympathy towards the Decree Holder. The Objections deserved to be allowed without disturbing the decree, leaving all other remedies open to the Decree Holder/Respondent, including proceedings against the Estate of the Judgment Debtor.21. I respectfully agree with my learned Brother that the

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]A perusal of the above will show that the Executing Court ignored and overlooked the important submission of the Appellant stating that she was the absolute owner of the suit property and that she had no truck whatsoever either with the Judgment Debtor Shri Prem Chand Verma or his wife Smt. Nirmal Verma beyond purchasing the subject property from the latter. What has also escaped the attention of the Court is that Suraj Lamp has prospective operation, thereby rendering it inapplicable to the subject 2006 transaction. Secondly, if the General Power of Attorney in favour of the Appellant Smt. Maya Devi was bereft of legal efficacy, the ownership of Smt. Nirmal Verma would also be invalid, and sequentially the property would have no connection whatsoever with the Judgment Debtor since he had purportedly derived title only through a Will. Unfortunately, this is also the approach which has been preferred by the High Court in terms of the impugned order. The High Court has also wrongly applied Suraj Lamp and has also neglected to reflect upon theplea that she is (i) the actual owner of the suit property having purchased it for valuable consideration, and (ii) being a third party not connected in any mala fide manner with the Judgment Debtor, and (iii) not having received prior notice of any action of late Shri Prem Chand Verma, was imperious to Execution proceedings. A miscarriage of justice, of monumental proportions, has taken place on an un-substantiated presumption that one of the assets of the Judgment Debtor had been illegally transferred to defeat the decree. The Appellant before us had no other recourse than to file Objections under Order XXI Rule 58 CPC.18. Finally another aspect which has come to the fore, is the approach of the Trial Court in the adjudication of the suit. The plaint contains an averment that the suit property had already been sold. The Defendant Shri Prem Chand Verma, (his wife Smt. Nirmal Verma was not impleaded) had appeared in the Trial Court and filed his Written Statement in which, whilst admitting the documentation executed between the parties, he had denied that he had been served with any legal notice and set up the defence that he was entitled to forfeit the amount received by him because the Plaintiff/Decree Holder had failed to pay the balance sale consideration as envisaged in the Deed of Agreement for Earnest Money. After filing his Written Statement he stopped appearing, and the suit proceeded ex-parte. Significantly, the Deed of Agreement for Earnest Money as well as the Written Statement predicatetitle on a Will, and in this context there is no evidence on record that it had taken effect because of the death of the Testator. In the event, as is to be expected, no appeal against the judgment and decree came to be filed, and, therefore, the decision was not tested before or scrutinized by the Appellate Court. The absence of the Defendant does not absolve the Trial Court from fully satisfying itself of the factual and legal veracity of theclaim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the Trial Court as well as the Executing Court to be fully satisfied that the claim has been proved and substantiated to the hilt by the Plaintiff. Reference to Shantilal Gulabchand Mutha vs Tata Engineering and Locomotive Company Limited, (2013) 4 SCC 396 , will be sufficient. The failure to file a Written Statement, thereby bringing Order VIII Rule 10 of the CPC into operation, or the factum of Defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order VIII Rule 10 CPC and on the invocation of Order IX of the CPC, the Court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted. .19. I am fully mindful of the fact that the Appellant has not taken any steps for setting aside the ex parte decree against late Shri Prem Chand Verma. This is only to be expected since the Appellant/Objector has no reason to evince or harbour any interest in the inter se dispute between the Decree Holder and the Judgment Debtor. Indeed, if the Appellant had made any endeavour to assail or nullify the decree, it would be fair to conclude that she had been put up by the Judgment Debtor in an endeavour to defeat the decree. In these circumstances, my in-depth analysis of the law pertaining to decreeing what is essentially a penalty clause may, on a perfunctory or superficial reading, be viewed as non essential to the context. This, however, is not so. On a conjoint reading of Order XXI Rule 58 CPC and the fasciculus of Order XXI comprising Rules 97 to 104, it becomes clear that all questions raised by the Objector have to be comprehensively considered on their merits. In the case in hand, the decree from which the Execution proceedings emanate is not one for delivery of possession, but is a simple money decree. Order XXI proscribes the filing of a separate suit and prescribes that all relevant questions shall be determined by the Court. Objection under Order XXI should be meaningfully heard so as to avoid the possibility of any miscarriage of justice. It is significant in this regard that Rule 103 ordains that where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise, as if it were a decree. I shall only advert to the decisions of this Court in Brahmdeo Chaudhary vs Rishikesh Prasad Jaiswal, (1997) 3 SCC 694 , Shreenath vs Rajesh, (1998) 4 SCC 543 , and Tanzeem-e-sufia vs Bibi Haliman, (2002) 7 SCC 50 , where proceedings were under the aforesaid fasciculus of Order XXI comprising Rules 97 to 104, in which the Objectors had set up a title distinct or different from that of the Judgment Debtor and the Court had protected their interest. The Appellant before us is a third party and has been brought into the lis by a side wind in that her property is sought to be attached with the intention of satisfying a decree in which she was not directly or intrinsicallyAppellant/Objector who has approached the Court under Order XXI Rule 58 is more advantageously or favourably placed inasmuch as she is a third party so far as the decree is concerned, and her property is not the subject-matter of the decree. It is thus clear to me that the Courts below have in a hurried, if not prejudiced manner, rejected the Objections merely because of some sympathy towards the Decree Holder. The Objections deserved to be allowed without disturbing the decree, leaving all other remedies open to the Decree Holder/Respondent, including proceedings against the Estate of the Judgment Debtor.