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High Court Of Delhi
RAVI KUMAR - Appellant
Versus
UMESH CHAND JAIN - Respondent
Civil 2 of 1987
Decided On : 03/07/1993
EXECUTION OF FOREIGN DECREE - ATTACHMENT OF PROPERTY - SHARE IN HUF PROPERTY - VALIDITY OF ORAL PARTNERSHIP - HINDU LAW - PARTITION - SETTLEMENT OF ACCOUNTS - INCOME TAX ASSESSMENT - PARTNERSHIP DEEDS - ADMISSIBILITY OF EVIDENCE - EXECUTION PROCEEDINGS - ORDER XXI RULES 11, 11-A, 13 AND 41 READ WITH SECTION 15 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
The decreeholder obtained a judgment and decree from the Supreme Court of Hong Kong, a superior court of a reciprocating territory under Section 44-A of the Code of Civil Procedure. The judgment-debtor had a share in the HUF property situated in the territorial jurisdiction of the court. The decreeholder filed an execution petition in the court in India for the execution of the said decree. The objector, a partnership firm, claimed that the property in question was its property and that the judgment-debtor had ceased to be a member of the partnership firm and, therefore, his share in the property could not be attached.
Finding of the Court:
The court found that the judgment-debtor had a share in the HUF property and that the objector's claim that the property was its property was not tenable. The court also found that the oral partnership claimed by the objector was not valid and that there had been no partition of the HUF property. The court further found that the income tax assessment records showed that the property in question was assessed to income tax in the name of the HUF and not in the name of the objector.
Issues: 1. Whether the judgment-debtor had a share in the HUF property? 2. Whether the objector's claim that the property was its property was tenable? 3. Whether the oral partnership claimed by the objector was valid? 4. Whether there had been a partition of the HUF property? 5. Whether the income tax assessment records showed that the property in question was assessed to income tax in the name of the HUF and not in the name of the objector?
Ratio Decidendi: 1. The court held that the judgment-debtor had a share in the HUF property on the basis of the municipal, revenue and house tax records which showed that the property was in the name of the HUF and that the judgment-debtor was one of the owners. 2. The court held that the objector's claim that the property was its property was not tenable as there was no evidence to support the claim and the income tax assessment records showed that the property was assessed to income tax in the name of the HUF and not in the name of the objector. 3. The court held that the oral partnership claimed by the objector was not valid as there was no evidence to support the claim and the partnership deeds were not produced before the court. 4. The court held that there had been no partition of the HUF property as there was no evidence to support the claim and the income tax assessment records showed that the property was assessed to income tax in the name of the HUF and not in the name of the objector.
Final Decision: The court allowed the execution petition and ordered the sale of the judgment-debtor's share in the HUF property for the satisfaction of the decree passed by the Supreme Court of Hong Kong in favor of the decreeholder.
( 1 ) THE decreeholder has filed an application under Order XXI Rules, 11, 11-A, 13 and 41 read with Section 15of the Code of Civil Procedure. The decreeholder has obtained a Judgment and Decree from the Supreme Court of Hong Kong which is a superior court of a reciprocating territory" under Section 44-A of the code of Civil Procedure.
( 2 ) THE loan given by the decreeholder to the judgment-debtor is no longer in dispute. Now, the only obvious question which the decreeholder is called upon to reply is why is this execution petition filed in this court. Admittedly, the judgment-debtor owns no property in Hong Kong and on his admissions has no wherewithal in Hong Kong to satisfy the said decree. Therefore, recovery cannot be made through the courts in Hong Kong. According to the knowledge and information of the decreeholder, the only property in which the Judgment-debtor has share is situated in the territorial jurisdiction of this court, hence me execution of the said decree can legitimately be filed in this court alone. The decreeholder has reproduced the affirmation of the judgment-debtor in his petition and the same is reproduced as under:
"i do not live in Hong Kong but in New Delhi. I have lost my business in Nepal to my business rivals. I am attempting to start up a new export- import business in Hong Kong in conjunction with my residual family business in India. "
( 3 ) THE judgment-debtor has immovable property as well as shares in various businesses within the jurisdiction of this court. The Judgment debtor on 24. 2. 81 and 25. 3. 82 represented to the decree-holder that he is a member of HUF and that HUF has immovable property 7-A and 7-B, Rajpur Road. Since the property in which the judgment debtor has a share is situated in the territorial jurisdiction of this court, therefore, the decreeholder has moved this court in India. The decreeholder further submitted that the fact the judgment debtor has a share in the said property is borne out by municipal, revenue and house tax records in which he is shown as joint owner of the above property.
( 4 ) BY the order of this court dated 20. 2. 87, this court issued warrants of attachment of l/4th share of the judgment-debtor in 32 flats situated at 7, Rajpur Road, Delhi. Again on a subsequent order of this court of 3rd March, 1987, warrants of attachment of l/4th share of the judgment-debtor in the land, buildings and property situated at 7-B, Rajpur Road, Delhi and commercial and office premises at 7-A, Rajpur Road, Delhi, were issued.
( 5 ) ON 8th April, 1987, E. A. No. 161/87 was moved. This application was filed by M/s United Estates under Order 21 Rule 58 of the Code of Civil Procedure. After the pleadings were complete, the court framed the following issues:- 1. Whether the Objector partnership M/s United Estates is the owner of the property bearing no. 7-A, Rajpur Road, Delhi, as alleged? If so, to what effect? 2. Relief.
( 6 ) THE court ordered that the objections be listed for evidence of the parties on 25. 8. 88. Statement of Objector s witnesses OW-1 and OW-2 were recorded. Counsel for the Objector closed his evidence on 29. 8. 88 and on the same day, counsel for the decreeholder made a statement that he does not want to produce any evidence. Therefore, the matter has been placed for disposal of the objections. The judgment-debtor was produced in the court and he was examined by the counsel for the judgment-debtor and cross- examined by counsel for the decreeholder and the Objector.
( 7 ) THE judgment-debtor has admitted that the loan of Rs. 9. 096. 750. 50 US $ was given to him by the decreeholder. He further stated that this loan was advanced by the decreeholder to various companies of the objector. The decreeholder after seeing the status and life style of R. C. Jain and Prabhash Chand Jain advanced this loan. The loan was routed through the judgment- debtor. The judgment-debtor clearly stated he is a member of the HUF and he has a share in the H
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