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HIMACHAL PRADESH HIGH COURT
Vivek Singh Thakur, J.
Sandeep Sethi – Decree Holder
versus
Nidhi Kuthiala – Judgment Debtor
Original Miscellaneous Application No.340 of 2021 in Execution Petition No.31 of 2020
Decided on : 31.10.2022
Agreement to Sell – Execution Application – Objections against – Any property purchased by person in name of his spouse or in name of child of such individual by providing consideration for such property out of known sources of that person, shall not be considered as a Benami transaction – Such purchase of property, unless contrary is proved, shall be presumed to have been purchased for benefit of wife/child – Judgment Debtor was absolute owner of suit property and was having every right to sell it – Family arrangements inter se family members as claimed in objections were never brought on record and there is nothing on record to justify claim of Objector that Judgment Debtor was not an exclusive owner of property but was ostensible owner and it was and is Objector who was and is in possession of property – Being husband, he may be residing with Judgment Debtor but his possession over property cannot be considered in exclusion of possession of Judgment Debtor entitling him to file objections against execution of decree passed in favour of Decree Holder – Objections rejected and application dismissed. [Prohibition of Benami Property Transaction Act, 1988 – Section 3 – Hindu Succession Act, 1956 – Section 14 – Civil Procedure Code, 1908 – Order 21, Rules 97-101] (Paras 31 and 40)
Result: Original Miscellaneous Application dismissed.
ORDER
Vivek Singh Thakur, J.—By way of this application, Ramit Kuthiala, husband of Judgment Debtor Nidhi Kuthiala, has filed objections under Orders 21, Rule 97-101 of Code of Civil Procedure against execution of judgment and decree dated 19.9.2019 passed by this High Court in COMS No.35 of 2018, titled Sandeep Sethi, vs. Nidhi Kuthiala.
2. Facts emerging from the record are that vide sale deed dated 7th August, 2012, Radha Krishan Kuthiala sold suit property to Nidhi Kuthiala wife of Ramit Kuthiala son of Shri Rajiv Kuthiala for consideration of Rs.2,40,00,000/- after receiving consideration through various cheques, detailed in sale deed, and property was transferred in favour of Nidhi Kuthiala to have and hold the suit property as an absolute owner thereof from the date of execution of sale deed along with all rights of easement, paths, passages, liberties and advantages wheresoever appertaining or occupied or enjoyed with the suit property, and legal and physical possession of property was also handed over to Nidhi Kuthiala. It was mentioned in sale deed that there was one occupant/tenant Dr. I.N. Verma on the top floor of suit property and Nidhi Kuthiala was entitled to take rent from or to seek eviction of the said tenant.
3. The aforesaid sale deed was assailed by one Brig.S.C.Kuthiala by filing the Civil Suit No.137 of 2012 titled as Brig.S.C. Kuthiala vs. Radha Krishan and another wherein Nidhi Kuthiala was defendant No.2. The said suit was withdrawn on 24.10.2017 after a compromise. As per compromise, an amount of Rs.40 lacs was paid by Nidhi Kuthiala to Brig. S.C. Kuthiala through Demand Draft No. 962147 and legal expenses of Rs.5 lacs were paid to learned counsel for plaintiff therein vide Demand Draft No. 962148 drawn on Union Bank of India.
4. Case of Decree Holder is that Nidhi Kuthiala was not having money to be paid to Brig. S.C. Kuthiala for settling the dispute of Civil Suit No. 137 of 2012 and, therefore, Decree Holder was approached for arranging the payment and suit property was agreed to be sold to Decree Holder for consideration of Rs.3 crores only with further agreement that Decree Holder had to pay Rs.1,50,00,000/- immediately, out of which Rs. 40 lacs and 5 lac were directly paid by Decree Holder through Drafts referred supra to Brig.S.C. Kuthiala and learned counsel of Brig.S.C. Kuthiala and thereafter, on very same day on 24.10.2017, when Civil Suit No. 137 of 2012 was dismissed as withdrawn in terms of compromise, an agreement was executed between Decree Holder and Judgment Debtor Nidhi Kuthiala for selling the suit property to Decree Holder for consideration of Rs.3 crore.
5. According to Decree Holder, Rs. 1,50,00,000/- was paid to Nidhi Kuthiala in following manner:—
(1) Rs. 10,000/- paid in cash on 7.9.2017.
(2) Rs. 9,40,000/- paid through RTGS vide UTR No.UBINH17250497333 dated 07.09.2017.
(3) Rs. 40,00,000/- paid to Brig. S.C. Kuthiala (Satish Kuthiala) vide D.D. No.962147 issued by Union Bank of India.
(4) Rs. 5,00,000/- paid to Sh.Dushyant Dhadwal, Advocate vice D.D. No.962148 issued by Union Bank of India.
(5) Rs.70,50,000/- paid through Cheuqe No.166318 dated 27.10.2017 drawn on Union Bank of India.
(6) Rs.1,50,000/- paid through bank transfer vide UTR No.UBINN171426060 dated 10.11.2017.
(7) Rs.23,50,000/- paid vide cheque No.166322 dated 02.12.2017 drawn on Union Bank of India.
Total Rs.1,50,00,000/- (Rupees One Crore Fifty Lakhs only).
6. Remaining sale consideration of Rs.1,50,00,000/- was to be paid by Decree Holder-plaintiff to Nidhi Kuthiala defendant at the time of registration and execution of sale deed.
7. Claiming that Judgment Debtor-Defendant was avoiding execution of sale deed on one pretext or the other, on 24.10.2018, Decree Holder filed Civil Suit i.e. COMS No. 35 of 2018 for specific performance of aforesaid agreement for sale dated 24.10.2017.
8. In COMS No. 35 of 2018, a joint application OMP No. 406 of 2018, under Order 23 Rule 3 CPC was filed on 11th Septemb
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