Court No. - 44

Case :- FIRST APPEAL No. - 189 of 2017

Appellant :- Nipun Gupta And Another

Respondent :- M/S Reliance Capital Limited Navi Mumbai

Counsel for Appellant :- Manish Goyal,Manish Goyal,Siddharth

Singhal,Siddharth Verma

Counsel for Respondent :- Pranjal Mehrotra

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Krishan Pahal,J.

Heard Sri Manish Goyal, learned Senior Counsel assisted by

Mr. Nikhil Mishra, learned counsel for the appellants and Mr.

Pranjal Malhotra, learned counsel for the respondents.

This is a judgment debtor's appeal against the order dated

16.2.2017 passed by the executing court in execution case No.

11 of 2010 (M/s. Reliance Capital Ltd. vs. Nipun Gupta and

another) arising out of the arbitration award dated 24.4.2009.

The objections under order 21 rule 58 C.P.C. were filed seeking

to set aside the attachment order dated 8.9.2011 of the property

in question, namely, Flat No. Gh-3, Sector Chai- Greator Noida

and, thus, to close the proceedings of the execution case.

In the application under order 21 Rule 58 C.P.C., it was sought

to be submitted by the appellant that the entire execution

proceedings were illegal, inasmuch as, the arbitral award dated

24.4.2009 itself was a nullity. The arbitrator had no jurisdiction

to pass the said award and further the property in question had

been illegally attached and the hypothetical/ mortgage deed was

obtained on a blank paper. The document of transfer of interest

in the attached property in favour of the objector/judgment

debtor was an unregistered allotment deed dated 7.2.2007. No

registered deed or transfer of title or interest in favour of the

objectors/ judgement debtor had been executed either by the

builder, namely, Messers Reliance Capital Limited or Greater

Noida Development Authority. The physical possession of the

property in question had not been handed over to the

debtor/judgment debtor. It was contended that someone else's

property cannot be attached for auction in the alleged

proceeding for execution of the award passed against the

objector the appellants herein. Entire proceeding of

attachment ,therefore, was illegal.

It is argued by the learned learned Senior Advocate for the

appellant that in the objection under Order 21 Rule 58 C.P..C.,

all questions relating to right, title or interest in the attached

property, if raised by the parties, are required to be adjudicated

by the executing court. It was open for the party concerned, to

contest that such a property was not liable to attachment. In the

instant case, as someone else's property had been attached in

execution of the decree passed against the judgement debtor,

the order of attachment is liable to be set aside.

It is then argued that the award was passed in favour of M/s

Reliance Capital Limited and execution proceedings had been

initiated by the said entity. However, certain subsequent events

had taken place and on account of de-merger two new

companies have been created. The dispute now is with regard to

the rights, interest and liabilities of two separate companies and

they are at loggerheads for realization of the award money. This

situation also requires to be adjudicated by the executing court.

Mr. Pranjal Mehrotra, learned counsel for the respondent, on the

other hand, states that the validity of the arbitral award cannot

be challenged in the execution proceedings as it is not

permissible for the executing court to go behind the decree. The

objection under Section 34 of the Arbitration Act had not been

filed by the judgment debtor, and, hence, it is not open for them

to raise any objection with regard to the validity of the award in

the execution proceedings.

Considering the above submissions, we may first go through the

provisions of order 21 rule 58 which reads as under:

"Adjudication of claims to, or objections to attachment of, property- (1)

Where any claim is preferred to, or any objection is made to