Chuhar Singh vs Dalbara Singh and Another

L.N. Mittal, J.—Sapurdar Chuhar Singh has filed this revision petition under Article 227 of the Constitution of India impugning order dated 06.07.2013 (Annexure P-5) passed by the Executing Court, thereby dismissing application Annexure P-4 filed by the petitioner. In execution petition filed by respondent no. 2 - decree-holder (DH) against respondent no. 1 - judgment-debtor (JD), movable property of JD including two trucks, a tractor and household articles and cattle were attached. The attached articles were given to the petitioner on sapurdar on 21.01.2005.

The petitioner, in his application (Annexure P-4) alleged that on 28.01.2005, JD along with his nephew and some unidentified persons, forcibly took away the attached articles from the petitioner, who reported the matter to the police, but the police did not take any action. The petitioner had moved similar application in earlier execution petition, which execution petition was, however, dismissed in default on 29.05.2006. Accordingly, the petitioner prayed that sapurdar dated 21.01.2005 of the aforesaid articles in favour of the petitioner be cancelled or JD be directed to restore the custody of the said articles to the petitioner.

DH, by filing reply, opposed the aforesaid application filed by the petitioner. However, the petitioner has withheld the said reply from this revision petition. Impugned order reveals that the DH alleged in his reply that the petitioner, in connivance with JD, has misappropriated the attached property to delay the recovery of the decretal amount. Averments made in the application (Annexure P-4), filed by the petitioner, were controverted.

Learned Executing Court, vide impugned order (Annexure P-5), has dismissed application (Annexure P-4), filed by the Sapurdar, who has, therefore, filed this revision petition to assail the said order.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner vehemently contended that the petitioner, immediately after occurrence dated 28.01.2005, moved application dated 29.01.2005 (Annexure P-1) in the previous pending execution petition, mentioning the same fact that the JD, along with his nephew and some unidentified persons had taken away the attached articles forcibly and illegally from the petitioner, who sought appointment of Local Commissioner, by moving application (Annexure P-1). It was also contended that the petitioner thereafter moved application dated 31.01.2005 (Annexure P-2) repeating the same facts and seeking cancellation of sapurdar of the petitioner. It was thus argued that the Executing Court has erroneously observed in the impugned order that the petitioner filed application (Annexure P-4) belatedly after six years and did not bring the matter to the notice of the Court soon after occurrence dated 28.01.2005.

I have carefully considered the matter.

In application Annexure P-4, the petitioner did not even refer to applications Annexures P-1 and P-2. In paragraph 9 of the application Annexure P-4, the petitioner alleged that DH also moved a similar application in the previous execution petition. Counsel for the petitioner contended that in fact, the petitioner had moved the earlier application and it was erroneously mentioned in application Annexure P-4 that DH had moved a similar application in previous execution petition. Even assuming it to be so, the petitioner did not specifically refer to applications Annexures P-1 and P-2 in application Annexure P-4 nor produced the same in the Executing Court nor produced the alleged report lodged by him with the police regarding the alleged occurrence. In addition to it, since the petitioner was in custody of the attached articles on behalf of the Court, the petitioner is bound to produce the said articles for further proceedings in the execution petition. Version of the DH is that the petitioner Sapurdar, in connivance with JD, has misappropriated the attached property. However, without commenting anything on conflicting versions of the parties, the petitioner, being Sapurdar of the attached property, is responsible for safe custody thereof and for producing the same when demanded by the Executing Court. The petitioner may have his remedy against the JD, who has allegedly taken away the attached property forcibly and illegally from the custody of the petitioner. For the reasons aforesaid, I find that the application Annexure P-4, filed by the petitioner, has been rightly dismissed by the Executing Court. There is no perversity, illegality or jurisdictional error in the impugned order of the Executing Court so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is devoid of substance and is accordingly dismissed in limine.