MOHINDER SINGH (SINCE DECESASED) THROUGH LRS & ORS. vs BIMAL SAXENA (DECEASED) THROUGH ASSIGNEE VIRENDER SINGH & ANR.

$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 09.09.2024
+ EFA(OS) 17/2024
MOHINDER SINGH (SINCE DECEASED)
THROUGH LRS & ORS. …..Appellants
Through: Mr Saurabh Kirpal, Sr Adv. with Mr Pankaj Mehta, Ms Shweta Soni, Ms Akansha Singh and Mr R K Mehta, Advs.
versus

BIMAL SAXENA (DECEASED) THROUGH ASSIGNEE VIRENDER SINGH & ANR. …..Respondents
Through: Mr Varun Goswami with Mr Naveen Grover and Mr Hritik Chaudhary, Advs.
CORAM:
HON’BLE MR. JUSTICE RAJIV SHAKDHER
HON’BLE MR. JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL):
CM Appl.52340/2024
1. Allowed, subject to just exceptions.
EFA(OS) 17/2024 & CM Appl.52341/2024
2. Issue notice to the respondents/decree holders.
2.1 Mr Varun Goswami, Advocate, accepts notice on behalf of the respondents/decree holders.
3. With the consent of the learned counsel for the parties, the matter is taken up for final hearing and disposal at this stage itself.
4. This appeal is directed against the judgement and order dated 09.08.2024, passed in favour of the respondents/decree holders by the learned Single Judge in the execution proceedings.
5. The record shows that the original decree holders had filed a suit for specific performance. The suit action was decreed on 20.12.1996 and a direction was issued to the original decree holders to deposit the balance amount i.e., Rs.1,93,725/-.
6. Evidently, the appellants/judgment debtors carried the matter in appeal. The appeal was numbered as RFA(OS) 15/1997. This appeal was, however, disposed of with consent of the parties on 14.02.2012.
6.1 The suit for specific performance was converted into a money decree, whereby, the appellants/judgment debtors were required to pay Rs.5 crores in the manner indicated in the order dated 14.02.2012.
7. Since then, the original decree holders have assigned the decree in favour of one, Mr Virender Kumar, son of Mr Arjun Das via the assignment deed dated 02.08.2020.
8. We may note that the execution proceedings were triggered in 2013. 9. The record also discloses that one of the judgment debtors i.e., judgment debtor no.1(xii) made the payment and satisfied the decree to the extent of her share in the suit property, which was 1/12th.
9.1 It appears that this aspect stands recorded in the order dated 16.02.2017.
10. In the execution proceedings, the appellants/judgment debtors, concededly, raised objections concerning the subject decree.
11. One of the objections that the appellants/judgment debtors had taken was pivoted on the provisions of Section 60(1)(ccc) of the Code of Civil Procedure, 1908 [in short, “CPC”].
12. To be noted, the aforesaid amendment to Section 60(1) of the CPC has been brought about by the State of Punjab, which, admittedly, extends to Delhi.
12.1 Based on this amendment which is extended to Delhi, the appellants/judgment debtors asserted that since the suit property was the only residential house available to them, it could not be attached and sold in the execution proceedings.
13. The learned Single Judge, however, rejected this plea advanced on behalf of the appellants/judgment debtors based on a decision rendered by a division bench of this Court in Sujata Kapoor vs. Union Bank of India and Ors. AIR OnLine 2019 Del 2185.
14. Mr Saurabh Kirpal, learned senior counsel, who appears on behalf of the appellants/judgment debtors, has submitted that what was not brought to the notice of the learned Single Judge was the judgment rendered by another coordinate bench of this Court in V P Arora vs. Punjab National Bank, 1991 SCC OnLine Del 581.
14.1 Furthermore, Mr Kirpal also relies on the decision rendered by the Supreme Court in Kiran Bala vs. Surinder Kumar (1996) 4 SCC 372 to buttress his submission.
15. Mr Kirpal submits that the subject property is worth, approximately, Rs.20 crores and what is claimed presently by the assignee decree holder is much less.
15.1 It is stated by Mr Kirpal that the amount claimed is approximately Rs.9 crores, while the subject property, as is noted above, is worth Rs.20 crores.
15.2 However, the counsel for the assignee decree holders says that the amount they claim is much more.
16. We have perused the decisions cited by Mr Kirpal in the cases of V P Arora and Kiran Bala. They support the submissions advanced by Mr Kirpal.
17. As a matter of fact, the plain language of Section 60(1)(ccc) of the CPC also supports the contention raised before us by Mr Kirpal. For convenience, the said provision is extracted hereafter:
“Section 60 – Property liable to attachment and sale in execution of decree.
(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgmentdebtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:—
xxx xxx xxx
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer of a domestic servant] and occupied by him.

(ccc) one main residential-house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment-debtor other than an agriculturist and occupied by him.”

[Emphasis is ours]

18. That said, it is obvious that the assignee decree holders would not be able to seek satisfaction of the decree (at least not properly in time) unless the appellants/judgment debtors sell whole or a part of the subject property. That the counsel for the appellants/judgment debtors took the stand that they were willing to make use of the subject property to generate liquidity is noted in paragraph 21 of the impugned judgment and order. For convenience, paragraph 21 is also set forth hereafter:
“21. At this stage, Mr. Mehta, learned counsel, states that he will get a collaborator and work out a viable deal, so that Rs. 9 crores/an amount to the satisfaction of the decree holder, is transferred in favour of the decree holder.”

19. Concededly, attention of the bench which rendered the decision in Sujata Kapoor was not drawn to the earlier judgments passed in V P Arora and Kiran Bala case.
19.1 The following observations made in V P Arora being apposite are extracted hereafter:
“10. As already noticed, the underlying object of section 60(ccc) is not to displace a judgment-debtor from the main residential house in execution of a money decree. It hardly matters whether he owned the house when degree [sic:decree] was passed or he comes to own the house at a time when it is sought to be attached or sold. That is why the law framers used the word ‘or’ between attachment and sale. The last relevant time would be the date of sale and if on the date of sale a residential house is owned by the judgment-debtor, it would not be sold and will have to be released from attachment.”

19.2 For convenience, the relevant paragraph of Kiran Bala case is also extracted below:
“6. Having set out the above facts, it is crystal clear to us that we have to grant relief to the appellant. It is evident that she sold the house in question ostensibly to pay off her debts but the sale has been declared by the civil court, decided in CS No. 636 dated 6-8-1991, to be null and void. The effect of that decision would be that the said sale becomes non est and the parties reverted to their original position; meaning thereby that the appellant got a negative declaration that she continued to be the owner-in-possession of the house in question. On that premises, what sequelly follows cannot be withheld merely on account of the conduct of the appellant. Since the legal consequence is that she would be the owner-in-possession of the house, she would definitely be entitled to claim its exemption from attachment or sale under sub-clause (ccc) of Section 60(1) of the Code of Civil Procedure, afore-referred to. Had the claim of the plaintiff in the said suit been negatived as regards the transfer being with the object of defeating or delaying her creditors, the house in question would necessarily have been out of the reach of the decree-holder. Merely because it has now been reverted back to the judgment-debtor that fact, by itself, would not disentitle the judgment-debtor from raising the legal plea of exemption. In this view of the matter, we are convinced that the executing court was in error in dismissing the objection petition of the appellant and so was the High Court in dismissing the revision petition in limine.”
[Emphasis is ours]
20. Given this position, as noticed above, on the plain language of Section 60(1)(ccc) of the CPC, we are constrained to rule in favour of the appellants /judgment debtors. The subject property being the appellants’/judgment debtors’ “one main residential house”, it cannot be attached and sold in execution proceedings.
20.1 Accordingly, the impugned judgment and order is set aside.
21. The appellants/judgment debtors will, however, file an affidavit declaring their individual assets and liabilities. The said affidavits will be filed within the next four (04) weeks.
21.1 The appellants/judgment debtors will also file their Income Tax Returns for the period spanning between 2012 and up-until today.
21.2 Given the stand taken by the appellants/judgment debtors before the learned Single Judge, the appellants/judgment debtors will endeavor to sell a portion of the subject property, to satisfy the decree.
22. At this stage, the counsel for the parties suggest that the parties could be referred to a mediator.
23. Accordingly, the parties and/or their respective counsel are directed to present themselves before the Delhi High Court Mediation and Conciliation Centre [in short, “Centre”] on 18.09.2024 at 3.00 P.M.
23.1 The Centre will endeavour to appoint a senior mediator, who is well-versed in property law.
24. The mediator will furnish a report to the executing court.
25. At this stage, Mr Kirpal, on instructions of Ms Shweta Soni, Advocate, says that if the appellants/judgment debtors are paid Rs.11 crores, they will transfer the rights in the entire subject property in favour of the respondents/decree holders.
25.1 The respondents/decree holders can consider this offer and place their response concerning the offer before the learned Single Judge.
26. The appeal is disposed of in the aforesaid terms.
27. Consequently, pending application shall stand closed.

RAJIV SHAKDHER, J

AMIT BANSAL, J
SEPTEMBER 9, 2024/pmc

EFA(OS) 17/2024 Page 1 of 7