The court upheld that objections to property attachment in execution cannot be entertained if the intent is to obstruct the decree, especially when rights are created post-decree.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done through video conferencing.

2. The present appeal has been filed challenging the impugned order dated 4th March, 2021 by which the objections filed by the Appellants have been rejected by the Executing Court.

3. The brief background to this case is that Respondent No.1 filed a suit for recovery under Order 37 CPC for a sum of Rs.11,16,000/-, along with interest, against Respondent No.2. The said suit was decreed vide judgment/decree dated 24th May, 2016. The operative portion of the said decree reads as under:

"20. In view of settled propositions of law, and in the facts and circumstances of this case discussed hereinabove, I am of the considered opinion that the defendant has failed to raise any triable issue. So, in these circumstances, the defendant is not entitled to leave to defend the suit. The leave to defend application, is therefore, dismissed, and the suit of the plaintiff under order 37 CPC is decreed with cost.

21. A decree for recovery of Rs.11,16,000/- is passed in favour of the plaintiff and against the defendant along with interest @ 9% per annum from the date of filing of the suit till its realization. Cost of the suit is also awarded. Decree sheet be prepared accordingly. File be consigned to record room, after due compliance."

The decree holder i.e., Respondent No.1 applied for execution of the said decree and in the said execution proceedings, the Appellants, filed their objections. In the execution petition, attachment order was passed on 7th July 2017, directing attachment of two shops.

"Accordingly, issue warrant of attachment of the movable properties of the JD (as per list filed by the DH) with police aid on filing of PF for the next date of hearing. The concerned SHO is directed to provide necessary police aid for execution of the warrant. The bailiff may break open the locks and doors of the premises of the JD, after confirming that the same belongs to the JD, so as to attach the movable properties of the JD.

Further, warrant/order of attachment of immovable property i.e. two shops shown in red colour in the site plan (annexed with the application filed today) out of property bearing no.21, Gali No.11, Block-A-2, West Sant Nagar, Burari, Delhi-110084 be issued prohibiting the JD from transferring or charging the said property in any manner and all persons from taking any benefit from such transfer or charge."

This attachment was objected to by the Appellants/objectors on the ground that the said two shops did not belong to the Judgment debtor but to the Appellants who are her children.

4. The basic argument of the Appellants is that they are the children of Late Mr. Arun Sharma, who is the husband of the judgment debtor i.e., Respondent No.2. Late Mr. Arun Sharma executed a Will in favour of the Appellants dated 20th January, 2018, by which property No. 21, gali number 11, Block A2, West Sant Nagar Burari, Delhi-110084 was given to them and the judgment debtor i.e., their mother, was excluded from ownership of the same. Therefore, it is the contention of the Appellants that their mother does not have any right in the two shops on the above-mentioned property which have been attached by the Executing Court vide order dated 7th July, 2017.

5. The Executing Court, however, vide the impugned order dated 4th March, 2021, dismissed the Appellants' objections and held that the shops belonging to the husband of the Judgment Debtor, would have, in effect, been succeeded to by the Judgment Debtor and the Will, which excludes the Judgment Debtor, merely seeks to defeat the execution of the decree which was passed. The reasoning given by the Executing Court is set out b