Sonraj vs Jamat Raj

Vineet Kothari, J.—This writ petition is directed against the order dtd.25.11.2008 whereby the learned trial Court rejected the application of the plaintiff-petitioner under Order 38 Rule 1 C.P.C. seeking attachment of the property in question before judgment. The learned trial Court has also rejected the prayer of the plaintiff-petitioner to implead the purchaser of the property in question under sale-deed Annex.3 dt. 20.08.2007.

The learned Counsel for the plaintiff-petitioner Mr. Om Mehta relying on decision of Bombay High Court in the case of SBI Home Finance Limited Vs. Credential Finance Limited and Others, urged that during the pendency of said application, which was filed by the plaintiff-petitioner on 31.07.2007, reply to which was made by the defendant before the learned trial Court on 16.11.2007, in which the defendant stated in para 1 and 3 of the said reply that he is residing in said property situated at village Sarat, which is his ancestral village and property and he does not intend to sell the said property, whereas the fact is that the said defendant Jamat Raj had already sold the suit property in question to one Vijay Kumar by registered sale-deed on 20.8.2008 vide Annex.3. The learned Counsel for the plaintiff-petitioner therefore submitted that the defendant has apparently made a false statement in his reply filed before the learned trial Court and thus misled the Court. He sold the property in question avoiding attachment before the judgment for which the application under Order 38 Rule 1 C.P.C. was pending before the learned trial Court. He, therefore, submits that the learned trial Court has not only erred in not attaching the suit property in question, but has also erred in rejecting the application of the plaintiff-petitioner for impleading the purchaser Vijay Kumar under the said sale-deed as party-defendant.

These submissions are opposed by the learned Counsel for the defendant-respondent Mr.Rakesh Arora who submits that in reply to the application filed by the plaintiff-petitioner seeking impleadment of Vijay Kumar, the defendant had disclosed this fact in para 2 that he had sold the suit property to Vijay Kumar. This reply was filed on 13.05.2008 vide Annex.5.

The property in question is sold on 20.08.2007 and in the reply to the application under Order 38 Rule 1 C.P.C. on 16.11.2007 after about three months, the defendant stated that he has neither sold nor does he intend to sell the said property.

The Division Bench of Bombay High in the case of SBI Home Finance Ltd. v. Credential Finance Ltd. (supra) dealing with the controversy almost similar to the one in hand before this Court has held as under:

Every claim or objection to properties under attachment has to be adjudicated after CPC Amendment 1976 and no substantive suit can be brought for such adjudication. The order made on such adjudication would have the force of a decree subject to Appeal. There is nothing in the provisions of the Transfer of Property act, 1882 which requires the issue to be raised by a substantive suit as Section 53 does not prescribe the mode by which the issue is to be determined. Under the present procedure of determination of such claims to property attached in execution or before attachment, when a person makes a claim or objection to the property under attachment, the Court has to finally adjudicate such claim or objection being preferred, the creditor raises the issue that such claim or objection has no substance because the transfer to the claimant/objector is hit by Section 53, then the said issue also has to be adjudicated as it would involve adjudication of the title or right to or interest in the property. The Court deciding the claim would have to adjudicate all these issues and render a final decision which would have the force of a decree subject to appeal.

Having heard the learned Counsels and in view of facts and circumstances of the present case, this Court is of the opinion that the defendant has clearly misled the learned trial Court by filing reply on 16.11.2007 to the application under Order 38 Rule 1 C.P.C. that he does not intend to sell the property in question, whereas he had already sold the same by registered sale-deed dt. 20.08.2007. The defendant has, therefore, apparently made a false statement before the Court. Subsequent cover-up in the reply to the application seeking impleadment of Vijay Kumar in para 2 is made possibly only to save his skin. The very purpose of Order 38 Rule 1 C.P.C. read with Rule 5 providing for attachment of property before judgment is to safe-guard satisfaction of decree if any passed in summary trial envisaged under Order 37 and 38 C.P.C.

Refusal of the learned trial Court to implead the purchaser Vijay Kumar as party defendant in the suit cannot also be apprecaited. He no longer remains stranger to the lis once the suit was admittedly pending in the Court and the defendant was pursuing that litigation. In order to finally resolve the controversy, his impleadment was necessary.

Consequently this writ petition is allowed. The impugned order dtd. 25.11.2008 is set aside. The property in question shall remain in attachment during the pendency of suit in question. The application for impleadment of Vijay Kumar is also allowed. The learned trial Court would proceed further accordingly. No order as to costs.