The burden of proving property as joint family lies with the party asserting it, and executing courts must allow opportunity for evidence in objections regarding property ownership during execution proceedings.

JUDGMENT :

ARUN R. PEDNEKER, J.

1) By the present second appeal, the appellant/original objector challenges the judgment and decree dated 11.09.2025 passed by the first appellate Court in R.C.A. No. 116/2025, confirming the judgment and order dated 9.5.2025 passed by the Executing Court in Special Darkhast No. 32/2017. The appellant/objection petitioner’s objection petition at Exh. 210 and an interim application for framing issues at Exh. 233 in Special Darkhast No. 32/2017 are dismissed by the Executing Court vide common judgment and order dated 9.5.2025.

2) The learned counsel for the appellant submits that following substantial questions of law arise in the present second appeal.

(1) Whether both the Courts below failed to appreciate the true intent, import and scope of Rule 97 of Order 21 of CPC, while rejecting Objection Petition/Application of the Appellant :

i) Holding that it is filed in collusion with JD-1 Narendra to frustrate and defeat the decree being frivolous, not bona fide and with intent to prolong the execution proceedings.

ii) Without going into the issue of right, title and interest of the Appellant more particularly when the Appellant claims proprietary right and share in the property in her possession.

(2) Whether the provisions of Rule 97-101 of Order 21 CPC permit the Executing Court to decide Objection in a summary manner without adjudicating right, title and interest in the property of the Appellant by denying opportunity to lead evidence to prove right title and interest, which only to prove by adducing evidence.

(3) Indisputably, the Appellant is in possession of the property in question and her right to remain in possession is independent of decree hence cannot be dispossessed until her right title and interest is adjudicated upon by following the due process of law.

(4) As to whether finding recorded by the executing court only on the basis of oral arguments without allowing evidence and without framing issue that property in question is self-acquired property of JD is directly militate to the basic principle of Evidence Act, more particularly provisions of Chapter VII of the Indian Evidence Act.

3) Before adverting the above raised substantial questions of law, brief facts leading to the institution of the present appeal can be summarized as under :-

The plaintiff filed suit for specific performance of an agreement of sale of plot No. 11, CTS No. 13159/17 situated at Shriniketan colony, Aurangabad in Special Civil Suit No. 201/2013. In the said suit, specific performance was not granted, however, direction was issued to refund the earnest money of Rs. 1,45,00,000/- (Rupees one crore and forty five lakhs) along with 8% interest. First appeal against the judgment of trial Court was dismissed. As the earnest amount was not refunded with interest, the Decree Holder (DH) filed execution petition on 8.8.2017 bearing Special Darkhast No. 32/2017. In the execution proceeding plot No. 11 was attached on 21.9.2017 by the executing Court.

4) During the pendency of the execution petition, after attachment, the Judgment Debtor (JD) sold the said plot No. 11 by a registered sale deed to one Vienna Multiventure. Meanwhile, the executing court issued proclamation for public auction of the said plot No. 11. Vienna Multiventure filed objection petition in the said execution proceeding on the ground that they are bonafide purchasers of the said plot No. 11. The objection of Vienna Multiventure was rejected by the