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Judgment
The present Appeal has been filed under Order XXI Rule 58(4) read with Section 151 of the Code of Civil Procedure, 19081 challenging the Order dated 18.05.20262 passed by the learned District Judge-01, South District, Saket Courts, New Delhi3 in case being Ex. 2802/2016, titled “Govind Sharda v. Ashok Sharma”, whereby the Application under Order XXI Rule 26 read with Rule 58 read with Section 151 of the CPC filed on behalf of the Objector/Appellant herein was dismissed and a fresh warrant of attachment was issued in respect of the immovable property bearing No. B-162, First Floor, Neb Sarai, New Delhi – 1100684.
Learned counsel appearing on behalf of the Appellant submits that the Impugned Order is erroneous, inasmuch as the objections preferred by the Objector/Appellant have been dismissed outrightly without framing any issue in respect of the ownership of the property. She submits that the Objector/Appellant had placed on record all the relevant documents pertaining to her ownership of the Subject Premises and, despite the same, the learned Trial Court has proceeded to dismiss the objections. She further submits that the Objector/Appellant has been in continuous and undisturbed possession of the Subject Premises for more than fifteen (15) years, which aspect, according to her, ought to have been duly considered by the learned Trial Court while adjudicating the objections.
Learned counsel for the Appellant further submits that, in any event, the husband of the Objector/Appellant, who is the Judgment Debtor in the Execution Petition, i.e., Ex. 2802/2016, has not been residing with the her and, in fact, they have been living separately and she has no knowledge about his whereabouts. It is, therefore, her submission that the Objector/Appellant has an independent right in respect of the Subject Premises and that the Appeal ought to be allowed and the Impugned Order set aside.
This Court has heard the learned counsel appearing on behalf the Appellant and, with her able assistance, perused the relevant documents as well as the Impugned Order.
The learned Trial Court has dealt with the objections raised by the Objector/Appellant in the following terms:
“7.It is settled law that under Order XXI Rule 58 CPC, an objector resisting attachment must establish a legal right, title, or interest in the attached property. Mere assertions of ownership, unsupported by legally admissible evidence, cannot suffice to defeat execution proceedings.
8.In the present case, the Objector has relied upon a Power of Attorney, Agreement to Sell, and an unregistered Will, all dated 09.09.2008, allegedly executed by the Judgment Debtor in her favour. However, these documents are unregistered and not amounting to a registered Sale Deed do not by themselves confer legal title in immovable property. No registered sale deed, mutation record, property tax record, electricity bills, or any other independent documentary evidence has been placed on record to establish exclusive ownership or possession of the Applicant/Objector.
9.Though the Applicant has asserted that she is wife of the Judgment Debtor and has been residing separately, such assertions, in the absence of cogent documentary proof of exclusive ownership, are insufficient to rebut the presumption arising from the documents executed by the Judgment Debtor himself.
10.In view of the aforesaid facts and circumstances, this Court finds no merit in the objections filed by the Applicant/Objector. The documents relied upon are insufficient to establish exclusive ownership or to defeat the lawful execution of the decree.”
A perusal of the aforesaid findings of the learned Trial Court shows that the objections were not dismissed summarily. The learned Trial Court has examined the documents relied upon by the Objector/Appellant and has returned a categorical finding that the same do not establish any independent legal right, title or interest of the Objector/Appellant in the Subject Premises. The documents relied upon by the Objector/Appellant, namely, the Power of Attorney, Agreement to Sell and unregistered Will, all dated 09.09.2008, do not, in themselves, establish title in the Objector/Appellant so as to defeat the attachment sought to be effected in execution proceedings being Ex. 2802/2016. We have also perused the concerned documents and find no infirmity in the conclusion.
Insofar as the contention regarding the Objector/Appellant being in possession of the Subject Premises for more than fifteen (15) years is concerned, mere possession, in the absence of material establishing the legal basis of such possession or an independent right or interest in the property, this aspect, cannot, by itself, furnish a ground for resisting attachment under Order XXI Rule 58 of the CPC.
The further contention of the learned counsel for the Appellant that the Objector/Appellant has been residing separately from the Judgment Debtor and has no knowledge of his present whereabouts also does not advance the case of the Objector/Appellant. The said assertion, even if accepted, would not, by itself, establish any independent right, title or interest of the Objector/Appellant in the Subject Premises. The learned Trial Court has also considered this aspect and has found that there was no cogent material placed on record to substantiate the said assertion. We too find no material in this regard placed on record.
This Court is, therefore, of the considered view that the learned Trial Court has duly considered the objections raised by the Objector/Appellant and has returned findings on the material aspects arising for consideration. No material has been placed before this Court which would warrant interference with the findings returned in the Impugned Order. The mere fact that the Objector/Appellant claims to be in possession of the Subject Premises or that she claims to be living separately from the Judgment Debtor cannot, in the absence of material establishing an independent legal right or interest in the property, operate to defeat the execution proceedings.
This Court, therefore, finds no error, infirmity or illegality in the Impugned Order warranting interference in the present Appeal.
In view of the aforesaid, the present Appeal, being devoid of merit, is dismissed.
Accordingly, the present Appeal, along with Pending application(s), if any, stand disposed of in the above terms.