- (1.) HEARD the learned counsels for the parties.
(2.) THE present appeal has been filed by the appellants-objectors challenging the order dated 29.8.08 passed by the Addl. District Judge, No.3, Kota in Civil Misc. Objection No. 78/08, whereby the objection application filed by the appellants-objectors under Order XXI Rule 58 of CPC has been rejected. Having regard to the submissions made by the learned counsels for the parties and to the documents on record it appears that the Civil Suit No. 332/88 filed by the respondent-Bank against Jahid Hussain, husband of the present appellant No.1 and against others was decreed by the Addl. District Judge No.3, Kota on 31.3.95 for the recovery of Rs. 1,99,015.11/-. The said decree having sought to be executed by the decree-holder Bank by filing Execution Petition No. 15/99, the House No. 2-F-4 Vigyan Nagar, Kota was attached in April, 2008 proclaiming that the house was owned by the judgment-debtor Jahid Hussain. The present appellants thereafter submitted objection application alleging interalia that the appellant No.1 was the owner of the said house as she had purchased the same on 27.10.01 from one Harjit Singh by executing an agreement for Rs. 2 lacs and that she had the income from Beauty Parlor run by her. The said objection application has been dismissed by the executing court vide the impugned order. Being aggrieved by the same, the present appeal has been filed by the appellants. It has been submitted by the learned counsel Mr. B.L. Mandhana for the appellants that the executing court before rejecting the objection application of the appellants should have held the enquiry and could not have come to the conclusion that the agreement executed in favour of the appellant No.1 was a Benami transaction. He also submitted that the appellants are in possession of the property in question and could not have been attached and sold for the recovery of the dues of the husband of the appellant No.1. As against that the learned counsel Mr. V.S.Yadav for the respondent-Bank has submitted that the objection application was filed by the appellants before the executing court only with a view to defeat the decree of the Bank against the judgment-debtor Jahid Hussain. He also submitted that the said judgment-debtor Jahid Hussain had deliberately purchased the house in question in the name of his wife i.e. the appellant No.1, who camouflaged the fact that the house in fact belonged to the judgment-debtor Jahid Hussain. He also submitted that the execution of the decree has been stayed on the frivolous appeal filed by the appellants and, therefore, the same deserves to be dismissed. In the instant case, at the outset it is required to be noted that before the executing court, the execution of the decree passed against the judgment-debtor Jahid Hussain has been objected by the appellants who are the wife and children of the said judgment-debtor and that in the present appeal he has not been joined as the party-respondent. It is needless to say that the said judgment-debtor being a necessary party and he having not been joined as party-respondent in the appeal, the appeal deserves to be dismissed on that ground alone. It further transpires that the objection application before the executing court and the present appeal filed by the appellants-objectors are nothing but an attempt to frustrate the execution proceedings filed against the husband of appellant No.1 and father of the appellant Nos. 2 to 6 Mr. Jahid Hussain, the judgment-debtor. As such there is nothing on record to suggest that the appellant No.1 was the owner of the house in question or that she did not know about the decree in question. There is also nothing to suggest that the appellant No.1 and her husband i.e. the judgment-debtor had strained relationship. The executing court, rightly appreciating the evidence on record had come to the conclusion that the house in question was purchased on 27.10.01 by the judgment-debtor Jahid Hussain in the name of his wife in order to frustrate the fruits of the decree dated 31.3.95 passed in favour of the judgment-debtor. The executing court has also rightly held that the appellant No.1 was claiming ownership of the said house only pursuant to the agreement which was not even registered one and that the said agreement was nothing but a Benami transaction. The said application having been filed with malafide intention to frustrate the decree, and the appellants and the judgment-debtor Jahid Hussain having not shown any readiness or willingness to pay the dues of the respondent-Bank, the execution proceedings could not be permitted to be thwarted on such frivolous objection application filed by the appellants-objectors. There being no illegality or infirmity in the impugned order passed by the execution court, the present appeal deserves to be dismissed and is accordingly dismissed. ;