Maya Devi vs Lalta Prasad

2. The appellant herein filed an Objection Petition under Order 21 Rule 58 CPC, when the decree obtained by the respondent in Civil Suit No.407 of 2007 was sought to be executed. Suit was filed for the recovery of an amount of Rs.3,40,000/- with interest, which was sought to be realized, on the property covered by an agreement for sale dated 3.11.2003 between the judgment debtor and decree holder. The appellant claimed that she became the absolute owner of the suit property by virtue of a registered General Power of Attorney dated 12.5.2006 and that she has been in actual physical possession of the suit property. The Petition was contested by the decree holder/respondent stating that the applicant/objector had no legal right, title or interest and that the execution of the General Power of Attorney and its registration would not confer any ownership right in favour of the appellant/objector. Reliance was also placed on the judgment of this Court in Suraj Lamp and Industries Private Limited Through Director v. State of Haryana & Anr. (2009) 7 SCC 363. The Executing Court vide its order dated 23.7.2010 dismissed the Objection Petition filed by the appellant. Aggrieved by the same, the appellant preferred Execution First Appeal No.23 of 2010 before the High Court of Delhi at New Delhi. The High Court also placed reliance on the judgment of this Court in Suraj Lamp and Industries Private Limited (supra) and dismissed the appeal holding that the documents relied upon by the appellant would not confer ownership or possession over the property in her favour. The High Court also vide its order dated 24.1.2011 upheld the order of the Executing Court. Aggrieved by the same, this appeal has been preferred by the appellant.

4 Both the Courts below have preferred the view that the Appellant, who has been in possession from the date of the execution of the registered GPA in her favour, has been introduced into the scene in order to defeat the interests of the Respondent, which is a perverse approach for reasons that shall be presently explained. The documents purportedly in favour of the Respondent/Decree Holder are unregistered and the alleged payment made by him to Shri Prem Chand Verma is in cash. Therefore, there is no justification for favouring the view that the alleged transaction between Shri Prem Chand Verma and the Respondent/Decree Holder was genuinely prior in time to the execution of the registered Power of Attorney in favour of the Appellant Smt. Maya Devi by Smt. Nirmal Verma, and the former simultaneously and contemporaneously was put into possession of the property by the latter.

10. The appeal is allowed, as above, and the impugned orders are set aside. There shall, however, be no order as to costs.

16 In this backdrop, it needs to be kept in prospective that Order XXI Rule 97 to Rule 101 of CPC envisage the determination of all questions in Execution proceedings and not by way of an independent suit. The Executing Court, therefore, was duty bound to consider and decide the Objections filed by the Appellant with complete care and circumspection. I regret to record that this has not been done. The Objections came to be dismissed on 23.7.2010 with brevity bordering on dereliction of duty, in the following manner:-

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.

20 I respectfully agree with my learned Brother that the Appeal deserves to be allowed and the impugned orders require to be set aside.

............................................J. [VIKRAMAJIT SEN] New Delhi February 19, 2014.