It appears that the decree holder as well as the objector Company are proceeding on the assumption that the order dated 18th December, 2010 passed by Himachal Pradesh High Court directing issuance of a precept amounted an attachment order. That, however, is not the correct position in law. A precept under Section 46 CPC is only a request of a Court passing the decree to another Court where the decree holder intends to initiate execution proceedings because of the judgment debtor having attachable properties within the jurisdiction of the Court to which decree is transferred under Order XXI Rule 6 CPC. Upon receipt of the precept the transferee Court has to attach the property in respect of which precept is received by it and even that attachment remains in force for a period of two months unless that attachment is extended by the Court which had passed the decree. This is provided in Section 46 CPC itself.
DELHI HIGH COURT
KARAM CHAND Vs. HARWINDER SINGH
Decided On : Sep-09-2013
CORAM: HON'BLE MR. JUSTICE P.K.BHASIN
ORDER P.K.BHASIN, J: On receipt of a money decree dated 28th September, 2010 passed by the High Court of Himachal Pradesh in Suit No. 37/2005, Karam Chand vs Harwinder Singh and sent by that Court to this Court in exercise of the powers under Order XX1 Rule 6 of the Code of Civil Procedure(C.P.C. in short) for execution by this Court one Company by the name of M/s Cutting Edge Infrastructure Private Limited (hereinafter to be referred as the the objector) immediately moved the present objection petition under Order XXI Rule 58 C.P.C. It is alleged in this objection petition that one of the two properties in Delhi which are sought to be attached and sold in execution of the decree against the judgment debtor i.e. house no.B-5/96, Safdarjung Enclave, New Delhi has been purchased by it from M/s Anant Raj Agencies Ltd., which Company had purchased it from the judgment debtor/ owner through a suit for specific performance of an agreement to sell executed by the judgment debtor in its favour in the year 2003 and in execution the decree passed in that suit sale deed was executed in favour of the said Company on 3rd December,2009. Thereafter, the said Company sold the same to the objector Company vide sale deed dated 3rd September, 2010. So, the judgment debtor being no more the owner the aforesaid property it cannot be attached in the present execution proceedings, is what the objector claims in this petition.
3. This objection petition has been opposed by the decree holder.
4. As noticed already, this Court had received the decree dated 28th September, 2010 passed by the High Court of Himachal Pradesh in suit no. 37/2005. Along with the decree a copy of the order dated 18 th December, 2010 passed in the execution petition no. 31/2010 filed before the High Court of Himachal Pradesh by the decree holder was also received. Vide that order the decree passed in the aforesaid suit was directed to be sent to this Court for execution in accordance with law. That order also shows that High Court of Himachal Pradesh had also directed issuance of preceptfor attachment of the two properties in Safdarjung Enclave, New Delhi belonging to the decree holder. However, no formal precept appears to have been received by this Court and that is evident from the fact that no attachment order was passed by this Court on receipt of the aforesaid order dated 18th December, 2010. Since this Court did not pass any attachment order in respect of House No. B-5/96, Safdarjung Enclave, New Delhi, which the petitioner Company claims to have purchased before the passing of the money decree in question in favour of the decree holder by the High Court of Himachal Pradesh there was no occasion for the petitioner Company to have filed objections under Order XXI Rule 58 CPC. It appears that the decree holder as well as the objector Company are proceeding on the assumption that the order dated 18th December, 2010 passed by Himachal Pradesh High Court directing issuance of a precept amounted an attachment order. That, however, is not the correct position in law. A precept under Section 46 CPC is only a request of a Court passing the decree to another Court where the decree holder intends to initiate execution proceedings because of the judgment debtor having attachable properties within the jurisdiction of the Court to which decree is transferred under Order XXI Rule 6 CPC. Upon receipt of the precept the transferee Court has to attach the property in respect of which precept is received by it and even that attachment remains in force for a period of two months unless that attachment is extended by the Court which had passed the decree. This is provided in Section 46 CPC itself.
5. After receipt of the decree by this Court from the High Court of Himachal Pradesh the decree holder was even otherwise required to file a formal execution petition in this Court praying for attachment and sale of the aforesaid property of the judgment debtor but no execution petition has been filed by the decree holder in this Court and, therefore, for this reason also the objection petition filed by the objector Company is not maintainable. Order XXI Rule 58 CPC gets attracted only after some property is attached by the executing Court and someone wants the attachment to be revoked on the ground that the property attached could not be attached.
6. For the aforesaid reasons, this objection petition is dismissed as being premature. P.K. BHASIN, J SEPTEMBER 9 2013
No comments:
Post a Comment