LexMAYA DEVI versus LALTA PRASAD
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[2014) 2 S.C.R. 1129 MAYA DEVI v. LALTA PRASAD (Civil Appeal No. 2458 of 2014) FEBRUARY 19, 2014 [K.S .. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.] Code of Civil Procedure, 1908: · Order XX/ r. 58 - Execution proceedings - Suit for recovery of money sought A B to be realized on a property covered by an agreement for sale C - 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 D 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 E 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 JD was in cash - Also, objector was in possession of F 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 XX/ Rule 58 and the fascicu/us of Order XX/ comprising Rules 97 to G 104 would show that all questions raised by the Objector should have been comprehensively considered on their merits - Decree from which the execution proceedings 1129 H 1130 SUPREME COURT REPORTS [2014] 2 S.C.R. A 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 tis 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 8 have been allowed without disturbing the decree, leaving all other remedies open to the DH including proceedings.against the estate of the JD. A suit for recovery of Rs.3.40 lacs was filed by the respondent against one PCV which was sought to be C realized on the property covered by agreement for sale dated 3.11.2003 executed between them. The suit was decreed ex parte. The appellant filed objection petition before the executing court on the ground that a registered Power of Attorney was already executed D between the appellant anGI NV who was wife of Judgment Debtor. The executing court dismissed the objection petition. The High Court upheld the same. In the instant appeal, it was contended for the E appellant that the decree was obtained by collusion and practicing fraud on the court; that she became the absolute owner of the suit property by virtue of a registered General Power of Attorney dated 12.5.2006 and that she has been in actual physical possession of F the suit property. Allowing the appeal, the Court HELD: G K.S. RADHAKRISHNAN. J. H 1. The Executing Court as well as High Court have committed a grave error in not properly appreciating the objections filed by the appellant. The registered Power of Attorney was executed by none other than the wife of MAYA DEVI v. LALTA PRASAD 1131 Judgment Debtor and the appellant on 12.5.2006 in A respect of the property in· question for a sale consideration of Rs.70,0001-, which was received by NV in cash in advance and she acknowledged the same before the Sub-Registrar, Delhi. On the same day, NV, wife of Judgment Debtor handed over physical vacant B possession of the land and building situated thereon and from 12.5.2006 onwards, the appellant was in possession of the property. A decree was obtained by the respondent without any proper contest and the court proceeded against Judgment Debtor ex-parte. These facts speak for c itself. Evidently, the collusive decree was obtained by the respondent to get over the registered Power of Attorney executed in favour of the appellant. The Power of Attorney executed on 12.5.2006 in favour of the appellant by the wife of Judgment Debtor was a genuine transaction 0 executed years before the judgment of Suraj Lamp. Facts will clearly indicate that the Agreement for Sale dated 3.11.2003 was created by none o
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