IMPORTANT POINT
Attachment of property--Ancestral property--JD got attached land from his father --JD did not inherit the suit land from his father cannot be said to be ancestral coparcenary property in his hands qua the objectors/appellants.

Mr. L. N. Mittal, J.: (Oral).:- This is second appeal in execution proceedings. Decree was passed against Baldev Raj @ Baldev Ram – respondent no.2 herein (JD) in favour of Sukhjinder Singh – respondent no.1 herein (DH), for recovery of Rs.4,98,000/- with interest @ 12% per annum on the principal amount of Rs.3,00,000/- from the date of institution of the suit till realization of the decretal amount. In the execution proceedings, 32 kanals 02 marlas land was attached for recovery of the decretal amount. Appellants herein, who are sons of JD, filed objection petition alleging that the attached land was ancestral in the hands of JD and therefore, appellants/objectors, being his sons and coparceners, have share therein.

2. DH resisted the objection petition by alleging that the land was self-acquired property of JD.

3. Learned Executing Court i.e. learned Civil Judge (Senior Division), Sirsa, vide impugned order dated 29.07.2008, dismissed the objection petition. Appeal against the said order preferred by the objectors has been dismissed by learned Additional District Judge, Sirsa vide impugned judgment dated 22.10.2008. Feeling aggrieved, objectors have filed the instant execution second appeal.

4. I have heard learned counsel for the parties and perused the case file.

5. Plea of the appellants that the attached land was ancestral coparcenary property in the hands of JD is unacceptable because the objectors themselves have pleaded that JD got the attached land from his father Shanu Ram vide judgment and decree dated 19.05.1988, as also revealed by mutation sanctioned on the basis of said judgment and decree. Consequently, JD did not inherit the suit land from his father and the same, therefore, cannot be said to be ancestral coparcenary property in his hands qua the objectors/appellants.

6. In addition to the aforesaid, the objections were filed after auction of the attached land had been effected and the auction purchaser had even deposited the sale price. Auction was effected on 31.08.2007 and auction purchaser deposited the remaining sale price on 11.09.2007. Consequently, objections against attachment filed thereafter are not maintainable in view of proviso (a) to Order 21 Rule 58 (1) of the Code of Civil Procedure.

7. It is also worth mentioning that decree has already been passed against respondent no.2. Consequently, it is pious duty of the appellants also to satisfy the said decree being debt due from their father, who is said to be ‘Karta’ of the joint Hindu family. For this reason also, the objections preferred by the appellants cannot be accepted.

8. Learned counsel for the appellants also contended that entire land should not have been sold for satisfying the decree as part of the attached land would have satisfied the decree. The contention cannot be accepted. The decretal amount was Rs.4,98,000/- plus pendente lite and future interest @ 12% per annum from the date of filing of suit till recovery. Suit is said to have been filed on 10.09.2003. Consequently, till date of auction i.e. 31.08.2007, a sum of Rs.1,44,000/- approximately, by way of pendente lite and future interest, was also added to the decretal amount of Rs.4,98,000/- and cost amount of Rs.24,333/-. So, the total decretal amount recoverable under the decree was Rs.6,66,000/- approximately. The attached land has been sold for Rs.8,00,000/-. Consequently, it cannot be said that highly excessive land has been sold for recovery of the decretal amount. Before auction, exact area sufficient to satisfy the decree could not be known. In any event, the auction amount is not highly excessive vis-avis the decretal amount. Consequently, the sale is not vitiated on this ground. In addition to it, on the request of respondent no.2-JD, he was permitted to sell 08 kanals land out of the attached land to satisfy the decretal amount and also to compensate the auction purchaser. He was given six months to do so, as prayed for by him vide order dated 12.05.2010. T