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Judgment
Heard.
By consent of the learned Counsel for the parties, the Second Appeal is heard finally.
This Second Appeal is filed being aggrieved by the judgment and order dated 26.07.2018 passed below Exh. 17 by the 10th Joint Civil Judge, Senior Division, Nagpur, in Spel. Darkhast No.105 of 2010, thereby rejecting the application under Order 21 Rule 97 of the Code of Civil Procedure, 1908 (CPC), filed by the appellant, and the judgment and order dated 21.08.2025 passed by the District Judge-01, Nagpur, in Regular Civil Appeal No. 387 of 2018, thereby dismissing the appeal of the appellant (Original Objector). Hence, the appellant has filed this Second Appeal.
The appellant herein was not a party to the Civil Suit2026:BHC-NAG:10791 filed by respondent Nos. 1 and 2. The suit was filed by respondent Nos. 1 and 2 against respondent No. 3, who is the mother of the present appellant, and as the suit was for recovery, it was decreed. Since the amount was not paid by respondent No. 3, who is now no more, her legal heirs were brought on record as respondent Nos. 3a to 3d, and the appellant is also one of the legal heirs of respondent No. 3. The respondent Nos. 1 and 2 filed Special Civil Suit No. 878 of 2008 against respondent No. 3 for the recovery of an amount of Rs. 5,47,000/-, and the suit was decreed on 11.01.2010. For the execution of this decree, respondent Nos. 1 and 2 filed execution proceedings, being Special Darkhast No.105 of 2010.
In the said execution proceedings, the property, i.e., Shop Block No. 47 on the Ground Floor, situated in Shreedevi Complex, standing on Corporation House No. 172, Tahsil and District Nagpur, came to be attached. As per the contention of the appellant, the said property was originally owned by late Sunderlal Kothari, i.e., the father of the appellant, and after his death, the present respondent No. 3, the original judgment debtor, and the other respondents- 3(a) to 3(d), including the appellant, became the co-owners of the said property along with other properties. After the death of2026:BHC-NAG:10791 the said Sunderlal Kothari, the present appellant, along with her mother, Sandhya, and brother Sarvottam Kothari, became the co-owners of the property.
The appellant herein filed an application under Order 21 Rule 97 of the CPC with a request to stay the execution proceedings and the sale proclamation of the said property and, if the sale proclamation was confirmed, it be confirmed only to the extent of the share of the judgment debtor, respondent No. 3. The Trial Court rejected the application, observing that all the previous objections had been rejected during the proceedings in the application moved by Puja Sarda, the co-owner. After the rejection of the said application, the appellant filed an appeal, and the Appellate Court also observed that the appellant and her family members were filing the said objections only to prolong the matter while suppressing the fact that, during the pendency of the execution proceedings, they had sold the said property to a third person.
The appellant has raised the following substantial question of law in this appeal:
“Whether a property jointly owned by a judgment debtor along with other co-owners can be attached in execution of a decree when the other co-owners of the attached property are2026:BHC-NAG:10791 not parties to the civil suit?”
On the aforesaid substantial question of law, this Court issued notice and heard both the parties.
The learned counsel for the appellant submitted that the property attached in the execution proceedings is the joint property of the appellant and the other co-sharers. The said property cannot be attached, as the judgment debtor was not the sole owner of the said property. He relied upon the judgment of this Court in the case of Mrs. Illa Rohit Sanhhvi and Ors. Vs. Dr. Pankaj Champaklal Gandhi and Anr. (Summary Civil Suit No. 1089 of 1999) and the judgment of this Court in Summary Civil Suit No. 3206 of 2008, decided on 24/02/2013, in support of his argument that the property of a third person cannot be attached by the plaintiff merely based on a vague and general statement. The plaintiffs or a party seeking to attach movable as well as immovable property must demonstrate on record that the judgment debtor owns or possesses the property.
The learned counsel for the respondent brought to the notice of this Court that, during the pendency of the execution proceedings, respondent No. 3, the judgment debtor, who was alive at that time, executed a sale deed in favour of one Wankhade, who had also raised the objection2026:BHC-NAG:10791 before the Executing Court. All the applicants, along with the other co-sharers, executed the said sale deed. The judgment debtor is the mother of the present appellant, and since she was also a party, she did not disclose the sale deed executed by them at the time of raising objection. Therefore, it was submitted that the appeal deserves to be dismissed with compensatory costs.
Heard both the sides.
The appellant has filed this appeal as the objection raised under Order 21 Rule 97 of the CPC was rejected by the Executing Court. On a perusal of the orders passed by the Trial Court and the Appellate Court, it appears that the appellant executed the sale deed and the purchaser of said property has raised an objection in execution proceeding. The appellant received the purchase amount corresponding to her share. She is no longer the owner of the property and does not have any share in the said property. It appears that the family members are raising objections one after another on similar grounds only to prolong the execution proceedings, as the property had already been sold during the lifetime of respondent No. 3, i.e., the mother. It is the pious liability of the appellant to pay the decretal amount even after receiving the amount representing her share in the2026:BHC-NAG:10791 property. As the appellant is not the owner of the property and has suppressed the said fact, no substantial question of law arises in the present matter. On the contrary, the appellant suppressed the material fact that she was a party to the execution of the sale deed in respect of the said property and failed to disclose the same. Accordingly, the appeal stands dismissed with compensatory costs of Rs. 10,000/-(Rupees ten thousand only) to be deposited Public Welfare Account' bearing No.129712010001014, IFSC Code UBIN0812978 with Union Bank of India, Branch High Court, Civil Lines, Nagpur within a period of two weeks from the date of the said order.
The learned counsel appearing for the appellant prayed for continuation of the interim order. Since the appeal is being dismissed for the reasons stated hereinabove, the prayer is rejected.
The Second Appeal stands disposed of.