Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure 1908: ยท Order XX/ r. 58 - Execution proceedings |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908: Order XX/ r. 58 - Execution proceedings - Suit for recovery of money sought to be realized on a property covered by an agreement for sale - Suit claim based on the stipulation in the contract that double the amount of earnest money would be payable in the event the contract was not performed - Suit decreed ex parte - Objection by appellant-objector before executing court that in respect of the said property a registered power of attorney in 2006 was already executed between objector and wife of Judgment Debtor (JD) and possession was handed over to objector - Executing court dismissed the objection - Held: Power of Attorney executed in favour of objector was a genuine transaction - The ex parte decree was obtained by Decree Holder (DH) to get over the registered power of attorney executed in favour of objector - DH could not disprove the title of objector - Documents purportedly in favour of DH were unregistered and alleged payment made by was in cash - Also, objector was in possession of property in question since 2006 - Imposition and recovery of penalty on breach of contract is legally impermissible under the Indian Contract Act - No evidence was led by DH that claim for twice the amount of earnest money was a fair estimate of damages - Conjoint reading of Order XXI Rule 58 and Order XXI comprising Rules 97 to 104 would show that all questions raised by the Objector should have been comprehensively considered on their merits - Decree from which the execution proceedings emanated was not one for delivery of possession, but was a simple money decree - The objector was a third party and was brought into the this as her property was sought to be attached with the intention of satisfying a decree in which she was not directly or intrinsically concerned - The objections ought to have been allowed without disturbing the decree, leaving all other remedies open to the DH including proceedings against the estate of the JD. |
Judge | Hon'ble Mr. Justice K.S. Panicker Radhakrishnan |
Neutral Citation | 2014 INSC 116 |
Petitioner | Maya Devi |
Respondent | Lalta Prasad |
SCR | [2014] 2 S.C.R. 1129 |
Judgement Date | 2014-02-19 |
Case Number | 2458 |
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