1. 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 whosesoever 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 fling 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 The said suit was withdrawn on 24.10.2017 after a compromise.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of Brig.S.C. Kuthiala and thereafter, on very same day on 24.10.2017, when Civil Suit No. 137 of 2012 was dismissed as withdrawn in terms of compromise, an agreement was executed between Decree Holder and Judgment Debtor Nidhi Kuthiala for selling the suit property to Decree Holder for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 Cheque 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 September, 2019 for placing on record the compromise and passing a decree in terms of compromise dated 04.09.2019 arrived at between the parties.

9. In furtherance thereto, after recording statements of parties a compromise decree was passed in terms of prayer made in joint application as per settlement between the parties.

10. In aforesaid compromise agreement dated 4th September, 2019, Judgment Debtor Nidhi Kuthiala had endorsed the execution of agreement dated 24.10.2017 to sell the suit property for consideration of Rs. 3 crore and acknowledged the receipt of Rs. 1,50,00,000/-. In terms of compromise, Nidhi Kuthiala had agreed to pay double amount of earnest money of Rs. 1,50,00,000/-, i.e. Rs. 3 crore to Decree Holder within 180 calendar days from the date of compromise with further condition that in case amount of Rs. 3 crores is not paid as agreed within stipulated period then she shall execute the sale deed of suit property in favour of Decree Holder in terms of agreement to sell dated 24.10.2017 and in such eventuality, balance consideration of Rs. 1,50,00,000/- shall be paid by Decree Holder at the time of registration of sale deed and delivery of vacant peaceful possession on spot.

11. Time of 180 days stipulated in compromise was expiring on 4th March, 2020. On 3rd March, 2020, Nidhi Kuthiala filed an application OMP No. 133 of 2020 in COMS No. 35 of 2018 for extension of time to comply the compromise agreement dated 4.9.2019 along with communication dated 24.2.2020 sent to Decree Holder with request to extend the time to pay Rs. 3 crore till 15th June, 2020. This application was listed in Court on 14.7.2020 on which date on request of learned counsel for Nidhi Kuthiala it was adjourned for 14th August, 2020 with direction to non-applicant/Decree Holder to file reply in meanwhile.

12. On 14.8.2020 further time was sought on behalf of Nidhi Kuthiala to arrange the money and on the basis of statement made by learned counsel for Decree Holder that damage was being caused by Judgment Debtor to the suit property, Nidhi Kuthiala was restrained from causing any damage to suit property in any manner.

13. After fling reply by Decree Holder, the application was listed on 15.9.2020, 22.9.2020, 6.10.2020 and 8.3.2021. In the meanwhile, on 26.9.2020, Decree Holder filed present Execution Petition No. 31 of 2020 and the same was listed in Court on 6.10.2020 wherein notices were issued to Judgment Debtor on her two addresses i.e. at the address(es) of Shimla and Chandigarh. Judgment Debtor was personally served at her address of Chandigarh and notice on the address of Shimla, sent through registered post as well as through Process Serving Agency, was served upon her through her father-in-law Rajiv Kuthiala on 13.10.2020 and 17.10.2020 respectively who had received the notices by stating that they were living jointly in the family.

14. On 30.10.2020, Execution Petition No. 31 of 2020 and OMP No. 133 of 2020 filed in Civil Suit COMS No. 35 of 2018 for extension of time were listed in the Court. On that day, learned counsel, appearing for Judgment Debtor in OMP No. 133 of 2020, had appeared in both matters and the matters were adjourned for 1.12.2020 directing the Judgment Debtor to file reply/compliance affidavit on or before 24.11.2020 with further direction to Registry to accept the amount, if any, deposited by Nidhi Kuthiala/Judgment Debtor. Thereafter, on 1.12.2020, matter was not listed due to Covid restrictions. Judgment Debtor changed her counsel on 4.3.2021 and on his request, matter was listed on 8.3.2021.

15. By 08.03.2021, Nidhi Kuthiala could not pay entire amount as agreed in compromise dated 4.9.2019 but she had submitted that against said amount, a payment of Rs. 25 lacs was acknowledged by Decree Holder and Rs. 20 lacs was being deposited by her in Registry of Court.

16. Rs. 20 lacs were deposited by Judgment Debtor in the Registry of Court on 24.3.2020. On 26.3.2021, Judgment Debtor undertook to deposit balance amount with claim that Rs. 25 lacs have been directly paid to Decree Holder in October, 2020. On that day, case was adjourned permitting the Judgment Debtor to deposit the balance amount as Decree Holder had also consented to grant time. But it was directed on that day that failing in depositing the balance amount, Judgment Debtor shall remain present in Office of Sub Registrar concerned to execute the sale deed in favour of Decree Holder on 20.4.2021 and case was ordered to be listed on 26.4.2021. Thereafter, Judgment Debtor deposited Rs. 8 lacs and Rs. 20 lacs in the Registry of this Court.

17. Case was listed on 27.4.2021. On that day, it was informed that Nidhi Kuthiala was tested positive for Corona virus in the month of April, 2021 and therefore, her entire family was isolated and she could not deposit the amount within extended time. On 23.03.2021, an application OMP No. 140 of 2021 was also filed by Judgment Debtor for placing on record Whatsapp chat to substantiate direct payment of Rs. 25 lacs to the Decree Holder in October, 2020. On 24.4.2021, Decree Holder also filed an application OMP No. 187 of 2021, seeking permission to deposit the Demand Draft with respect to sale consideration of amount along with copy of sale deed, receipt dated 19.4.2021 of payment of stamp duty of Rs. 18 lacs, payment of Registration fee Rs. 6,00,010/- and other documents including valuation report, revenue record required for adjudication of sale deed and also copy of Demand Draft dated 17.4.2021 in favour of Nidhi Kuthiala for Rs. 1,47,00,000/- drawn at HDFC Bank Panchkula, Sector 11 Chandigarh, Panchkula. On 27.4.2021, three weeks' time to file reply to this application was also granted. Matter was adjourned for 28th May, 2021, but due to COVID matter was not listed on 28.5.2021.

18. In the meanwhile, applicant Ramit Kuthiala filed present application OMP No. 340 of 2021 as objections, on 27.5.2021. Thereafter, matter was taken up for consideration on 28th July, 2021.

19. Objections/OMP No. 340 of 2021 has been filed on various grounds including that Judgment Debtor has not approached the Court with clean hands for not disclosing entire factual position before the Court and is estopped from fling Execution Petition for his acts, deeds, conduct and acquiescence, with further claim that suit property was purchased by his family by contributing amount from their sources to pay consideration amount to Radha Krishan Kuthiala and at that time, Nidhi Kuthiala, hardly of 30 years of age, was not having any income or funds of her own to purchase the property, and though suit property was purchased in her name but for all intends and purposes objector, husband of Nidhi Kuthiala, was owner of suit property and his wife Nidhi Kuthiala was merely an ostensible owner having no authority, either expressed or implied, to enter into agreement of sale or to sell the suit property and objector is in possession and is maintaining the suit property since its purchase till date by making payments of entire bills, dues, cesses, payments etc with respect to suit property without any assistance or contribution from Judgment Debtor Nidhi Kuthiala, and all these facts were well within knowledge of Decree Holder. Further that agreement to sell in reference in COMS No. 35 of 2018, alleged compromise therein during pendency of said suit and resultant judgment and decree dated 19.9.2019 were not in knowledge of objector whereas the suit for specific performance and judgment and decree obtained in favour of Decree Holder is an outcome of fraud and misrepresentation having been played upon the Court by concealing the factual position from the Court in a deceitful and mischievous manner and, therefore, it has been claimed that objector cannot be ousted from suit property in question being owner in possession thereof.

20. In objections, details of payment of consideration, made at the time of execution of sale deed in the name of Nidhi Kuthiala in the year 2012, for purchasing the suit property from Radha Krishan Kuthiala, regarding contribution of family members have been given by stating that Rs. 14 lacs, 50 lacs, 15 lacs and 5 lacs were paid by grandfather of objector Gian Chand Kuthiala by way of cheques issued on different dates, Rs. 14,50,000/- was paid by his mother Pratibha Kuthiala through cheque and Rs. 61,50,000/- was paid in cash which was derived out of sale of property at Hoshiarpur belonging to grandfather of objector namely Gian Chand Kuthiala, and though balance amount of consideration was paid by Judgment Debtor by making payment Rs. 25, lacs, 20 lacs, 22,50,000/- and Rs. 12,50,000/- through cheques issued on different dates but this payment by Judgment Debtor was not out of her earnings and savings but out of amount transferred to her account by objector from time to time and, thus, there was no contribution of Judgment Debtor towards the purchase of suit property. It has been claimed by objector that minimum cost of suit property is Rs. 10,32,00,000/- as assessed by registered valuer whereas it has been agreed to be sold for Rs. 3 crore which indicates that agreement executed between the parties was unconscionable, an outcome of fraud and misrepresentation and thus no legally executable decree could have been passed on the basis of the same.

21. It has been claimed by objector that he came to know about alleged agreement of sale, judgment and decree dated 19.9.2019 and present execution petition only on 20.5.2021 when the same were disclosed to him for the first time by Judgment Debtor and it was shock to him and thus, he immediately contacted the lawyer and filed objections but without desired and complete record because of situation prevailing on account of Covid-19 pandemic,.

22. It has been further submitted by learned counsel for objector that for determining whether Judgment Debtor Nidhi Kuthiala is ostensible or absolute owner of property issue is required to be framed and the said issue deserves to be decided after granting opportunity to parties to lead evidence.

23. In response to objection petition, it has been contended that objector has no legal right to file objection petition having no cause of action, locus standi or legal right in his favour to seek relief under Order 21 Rule 97 and Rule 101 CPC and claim of objector is barred by provisions of Prohibition of Benami Transaction Act, 1988, according to which, for sale deed executed in favour of Nidhi Kuthiala, suit property has to be presumed to have been purchased for her benefit unless the contrary is proved as provided in Section 3(2) (a) of said Act. It has been further contended that provisions of Benami Transaction Act, as in force at the time of execution and registration of sale deed dated 7.8.2012, shall be applicable in present case, which provides that purchase of property by any person in the name of his wife shall be presumed, unless contrary is proved, that said property had been purchased for benefit of wife.

24. According to Decree Holder, Judgment Debtor Nidhi Kuthiala, herself, handed over original sale deed to Decree Holder for perusal, which clearly reflected that Judgment Debtor was owner of suit property for all intends and purposes and was put in possession by previous owner by delivering the possession on spot to her and further that sale deed nowhere disclosed that sale consideration amount was paid by objector or Gian Chand or Smt. Pratibha. Further that Decree Holder visited the suit property along with Judgment Debtor and objector, and objector narrated and described the boundary of suit property and further enquiries were made from neighbours also. A rent petition for eviction of a portion of suit property in possession of tenant preferred by Judgment Debtor Nidhi Kuthiala was also provided by Judgment Debtor and objector, and in Civil Suit No. 137 of 2012 filed by Brig. S.C. Kuthiala, which was decided on 24.10.2017, Judgment Debtor Nidhi Kuthiala was defendant on the basis of her title along with previous owner Radha Krishan Kuthiala from whom property was purchased by Judgment Debtor Nidhi Kuthiala. Decree Holder after perusal of sale deed, rent petition, verification of facts on spot, perusing the facts of Civil Suit No. 137 of 2012 and verifying the revenue record, found that Judgment Debtor was lawful sole owner of suit property, and he purchased the suit property for a lawful consideration acting in good faith. After making all enquiries and investigations, with regard to title and possession of Judgment Debtor, mutation was also attested in favour of Judgment Debtor only and in revenue record, name of Judgment Debtor has been reflected as sole owner. In the light of aforesaid facts, it has been contended that Judgment Debtor is not an ostensible owner and she had agreed to transfer the suit property to Decree Holder for consideration and if any arrangement was there between husband and wife, the same was in special knowledge of Judgment Debtor and her husband (Objector) which could not have been known by Decree Holder by any stretch of imagination who was an outsider.

25. It has been contended that Judgment Debtor and her husband (objector) live together in the same house and they have entered into a well planned conspiracy by suppressing material facts and manipulating the circumstances and present objection application/petition has been preferred in order to harass the Decree Holder with ulterior motive and false assertion, as earlier Judgment Debtor, wife of applicant/objector, kept on delaying the matter by giving false undertaking before the Court by submitting that Judgment Debtor would be either depositing the entire amount on or before 16.4.2021 or shall execute and register the sale deed on 20.4.2021 and now in furtherance to conspiracy, objector and Judgment Debtor, who are hand in glove, are trying to linger on the proceedings and manipulate the circumstances. It has also been contended that objector and Judgment Debtor are residing together under one roof and therefore, plea of Objector that he came to know about the present litigation only on 20.5.2021 is also a figment of imagination. Whereas, Judgment Debtor had been appearing in Court and seeking adjournments by making false statements, despite the fact that petitioner has paid half of consideration amount, i.e. Rs. 1,50,00,000/- by way of bank transactions except Rs. 10,000/- which was paid in cash and out of remaining, an amount of Rs. 45 lacs, i.e. Rs. 40 lacs plus Rs. 5 lacs, was paid by Decree Holder on request of Judgment Debtor for settlement of Civil Suit No. 137 of 2012 and this payment was made through Bank Drafts No. 962147 and 962148, referred supra.

26. It is the case of Decree Holder that at the time of adjudication of Civil Suit No. 137 of 2012, Judgment Debtor approached Decree Holder for financial help and thereafter arrangement for amount was made during meetings and negotiations among the Decree Holder, Judgment Debtor and applicant/Objector and Judgment Debtor in presence of her husband (Objector) offered the Decree Holder to sell the entire property as mentioned in decree and Execution Petition. According to Decree Holder, all three parties i.e. Decree Holder, Judgment Debtor and Objector had agreed for selling and purchasing the suit property for Rs. 3 crore only and on request of Judgment Debtor, Decree Holder had paid Rs. 40 lacs and Rs. 5 lacs immediately. It has been submitted on behalf of Decree Holder that Agreement to Sell was executed in presence of witnesses Manav Mehra and Gurdial Singh and as a matter of fact, Manav Mehra is brother-in-law of Objector, and Rs. 10,000/- was paid in cash whereas Rs. 1,49,90,000/- were paid through Bank Drafts, bank transactions and cheques etc. It has been further submitted that Decree Holder had already spent more than Rs. 24 lacs on account of Stamp Duty, Registration Charges and had appeared in the Office of Sub Registrar Shimla on 20.4.2021 for the purpose of execution of sale deed in compliance of order passed by this Court. It has been further submitted on behalf of Decree Holder that Judgment Debtor was delaying the execution proceedings on one pretext or the other by assuring payment of amount, but instead thereof, Judgment Debtor started dismantling the building and Decree Holder was constrained to obtain injunction order against her to stop the work. It has been submitted that it is the case of Objector that Nidhi Kuthiala is not having any independent source of income but he is not explaining that from where and how Rs. 45 lacs to compromise the Civil Suit No. 137 of 2012 were arranged by Judgment Debtor.

27. Separate reply has been filed by Judgment Debtor wherein she has asserted that she was absolute owner in possession of suit property and funding by family members to purchase the suit property did not create any embargo on independent right of Judgment Debtor to dispose of property in the manner she considered best. It has been denied that she was merely an ostensible owner and had no authority to enter into any Agreement to Sell or sell the land/suit property. It is also denied that decree sought to be executed is an outcome of collusion between Judgment Debtor and Decree Holder or they have played a fraud upon the objector or Court. It has been claimed that immediately after execution of sale deed dated 7.8.2012 Judgment Debtor had acquired exclusive right on suit property and building standing thereon.

28. To substantiate right to file objections and to dismiss the execution petition on the ground taken in objections, learned counsel for objector has placed reliance on Mt. Hakiman vs. Mt. Badr-un-nisa and another, reported in MANU/LA/0588/1934 : AIR 1934 Labore 658; Laxman Sakharam Salvi vs. Balkrishna Balvant Ghatage, reported in MANU/MH/0036/1995 : AIR 1995 Bombay 190; Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, reported in MANU/SC/0191/1997 : (1997)3 SCC 694; Shreenath and another vs. Rajesh and others, reported in MANU/SC/0286/1998 : (1998)4 SCC 543; N.S.S. Narayana Sarma and others vs. Goldstone Exports (P) Ltd. and others, reported in MANU/SC/0743/2001 : (2002)1 SCC 662; Tanzeem-e-Sufa vs. Bibi Haliman and others, reported in MANU/SC/0717/2002 : AIR 2002 SC 3083; Ashan Devi and another vs. Phulwasi Devi and others, reported in MANU/SC/0949/2003 : (2003)12 SCC 219; Tanzeem-e-Sufa vs. Bibi Haliman and others, reported in MANU/SC/0717/2002 : AIR 2002 SC 3083; and Har Vilas vs. Mahendra Nath and others, reported in (2011)15 SCC 377.

29. To substantiate his plea, learned counsel for Decree Holder, has referred pronouncements in cases Vaddeboyina Tulasamma and others vs. Vaddeboyina Sesha Raddi (dead) by LRs, reported in MANU/SC/0380/1977 : AIR 1977 SC 1944; Bhanwari Lal vs. Satyanarain and another, reported in MANU/SC/0072/1995 : (1995)1 SCC 6; Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, reported in MANU/SC/0191/1997 : (1997)3 SCC 694; Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another, reported in MANU/SC/0252/1998 : AIR 1998 SC 1754; Gangamma etc. Vs. G. Nagarathnamma and others reported in MANU/SC/1118/2009 : AIR 2009 SC 2561; and Debika Chakraborty vs. Pradip Chakraborty, reported in MANU/WB/0844/2016 : AIR 2017 Calcutta 11.

30. Undisputedly, Judgment Debtor acquired title on suit property on the basis of sale deed dated 7.8.2012. Certified copy of sale deed is available on record of COMS No. 35 of 2018 titled Sandeep Sethi vs. Nidhi Kuthiala. In the sale deed, it has been recorded that Radha Krishan Kuthiala is seller and Nidhi Kuthiala is purchaser. It is stated in it that total consideration of Rs. 2,40,00,000/- was also paid to seller by purchaser by way of Account Payee cheques referred in sale deed but no where it has been reflected that Objector or Gian Chand or Pratibha or any other person made this payment on behalf of buyer. Sale deed depicts that purchaser paid the sale consideration and it is recorded in sale deed that legal and physical possession of property was handed over by seller to purchaser. Nakal Jamabandi for the year 2006-2007, available on record of suit, also indicates that suit property referred in sale deed was in exclusive ownership of Radha Krishan Kuthiala as per mutation No. 375 and thereafter, vide sale/Conveyance No. 401 of 2012, dated 7.8.2012 ownership of the suit property was transferred by Radha Krishan Kuthiala to Nidhi Kuthiala. The aforesaid document nowhere indicates that Nidhi Kuthiala was limited owner or ostensible owner or other family members including the Objector had any right or lien over the suit property, purchased in the name of Nidhi Kuthiala.

31. Undoubtedly, a transaction or an arrangement; where a property is transferred to or is held by a person and consideration for such property has been provided or paid by another person and property is held for immediate or future benefit, direct or indirect, of the person who has provided the consideration; under the provisions of Prohibition of Benami Property Transaction Act, 1988 has been terms as Benami Transaction; however, any property; purchased by the person in the name of his spouse or in the 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, and such purchase of property, unless contrary is proved, shall be presumed to have been purchased for the benefit of wife/child.

32. In present case, even if it is considered that on 7.8.2012 property in question was purchased, by paying consideration by family members or husband, it shall not be considered as Benami transaction but a transaction made for benefit of Judgment Debtor. Otherwise also, a woman under provisions of Section 14 of Hindu Succession Act is an absolute owner of property devolved upon her in any manner and has a right to enjoy, utilize, dispose of or transfer etc. in any manner.

33. Copy of decision dated 24.10.2017 passed in Civil Suit No. 137 of 2012 titled Brig. S.C. Kuthiala vs. Radha Krishan Kuthiala and another has been placed on record along with statements of parties whereby suit was dismissed as withdrawn in terms of compromise against payment made of Rs. 40 lacs to plaintiff through Demand Draft No. 37962147 drawn at Union Bank of India. It is the same demand draft which has been claimed by Decree Holder to have been paid by him on request of Judgment Debtor for arranging the amount for compromising the Civil Suit No. 137 of 2012. Though such claim of Decree Holder has been denied by Objector but neither in objections nor in rejoinder, Objector has disclosed or placed on record the source of Rs. 40 lacs paid to Brig. S.C. Kuthiala and Rs. 5 lacs paid as legal expenses to Counsel.

34. Agreement to Sell executed between Decree Holder and Judgment Debtor has also been placed on record in COMS No. 35 of 2018 wherein details of amount paid by Decree Holder to Judgment Debtor have been narrated, and as per agreement, total sale consideration was Rs. 3 crore and out of that, Rs. 1,50,00,000/- was paid by Decree Holder and remaining Rs. 1,50,00,000/- was to be paid at the time of execution or registration of transfer papers of sale deed. It was provided that seller can back out from deal by paying double amount of earnest money, i.e. Rs. 3 crore.

35. Decree Holder, on the basis of aforesaid Agreement to Sell, filed the Civil Suit for specific performance wherein in terms of agreement, matter was compromised and instead of executing the sale deed, Judgment Debtor preferred to back out from Agreement to Sell and chose to pay double amount of earnest money to Decree Holder within 180 days. It was agreed that in case Rs. 3 crore was not paid to Decree Holder by Judgment Debtor, then Judgment Debtor shall register the sale deed of property in favour of Decree Holder in terms of Agreement to Sell dated 24.10.2017 and Decree Holder shall pay remaining Rs. 1,50,00,000/- to Judgment Debtor at the time to registration of sale deed.

36. The aforesaid compromise decree was passed on 19th September, 2019. As per compromise, 180 days expired on 4th March, 2020. But by that time, Judgment Debtor did not pay Rs. 3 crore to Decree Holder and ultimately, Decree Holder preferred present Execution Petition on 23.9.2020.

37. As recorded supra, Judgment Debtor was always seeking time to make payment of Rs. 3 crore to Decree Holder instead of agreeing to execute the sale deed of property in favour of Decree Holder. Had there been connivance between Decree Holder and Judgment Debtor, Judgment Debtor would have agreed for execution of sale deed in favour of Decree Holder either on first day or any subsequent date but instead thereof, she continuously tried to buy time and lingering on Execution Petition on one pretext or other and also deposited Rs. 20 lacs and 10 lacs in the Registry of this Court with further assurance that she would be arranging balance amount by next date for making the payment thereof to Decree Holder. She also claimed payment of Rs. 25 lacs directly to Decree Holder. She was directed to appear in Court for execution of sale deed but she did not appear and agree for executing sale deed and preferred to seek time to pay. Therefore, on the basis of material on record, for conduct of Judgment Debtor during proceedings of Execution Petition or otherwise, it does not appear that she hatched a conspiracy to dispose of the property in favour of Decree Holder on account of collusion.

38. It is claim of the objector that Judgment Debtor did not disclose about entering into an Agreement to Sell, fling of Civil Suit, passing of judgment therein as well as fling of execution petition, and he came to know about it only on 20.5.2021.

39. Record reveals that notice issued to Judgment Debtor in Execution Petition directing the Judgment Debtor to appear in Court on 30th October, 2020 was served upon her at two addresses, i.e. on Mani Majra Chandigarh as well as on M/s. Hakam Mal Tani Mal, 36, Lower Bazar, Shimla H.P. Notice at Mani Majra was received by Judgment Debtor herself on 14.10.2020, whereas notice issued at address of Lower Bazar, Shimla, through Registered AD as well as Process Serving Agency, were received by Rajeev Kuthiala, who is father of objector and father-in-law of Judgment Debtor. Notice through Process Server was served on 17.10.2020. It was received under signatures by Rajeev Kuthiala on behalf of Nidhi Kuthiala and affidavit of Process Server to that effect is also on back side of office copy of summons. Notice, through Registered AD, issued to Judgment Debtor on the address of Lower Bazar was also received by Rajeev Kuthiala on 13.10.2020. Claim of objector that he was not knowing about execution petition appears to be a false, a concocted story for justifying fling the objections after a considerable long time of service of summons. Therefore, plea of objector that Nidhi Kuthiala did not disclose about Agreement to Sell, Civil Suit, Judgment and Execution Petition, is not sustainable as father of Objector had acquired the knowledge about Execution Petition in October, 2020. It is not a case of Objector that his father is also acting in connivance with Judgment Debtor and Decree Holder. It appears from the conduct of Judgment Debtor that in suit filed for specific performance of the agreement to sell the suit property, she tried to save the property by entering into compromise with assurance to pay double of earnest money by backing out from Agreement to Sell as permissible under agreement. During Execution Petition also, she took time to pay and deposited Rs. 30 lacs in the Registry of the High Court instead of executing sale deed and she did not attend the Office of Sub Registrar to execute the sale deed and contested the Execution Petition and tried to buy time for making payment and, therefore, it is not apparent on record that she was acting in connivance with Decree Holder.

40. From documents on record and also keeping in view the provisions of law, it is apparent on record that Judgment Debtor was absolute owner of suit property and was having every right to sell it. Family arrangements inter se the family members as claimed in these objections were never brought on record and there is nothing on record to justify the 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 the property cannot be considered in exclusion of possession of Judgment Debtor Nidhi Kuthiala entitling him to file objections against the execution of decree passed in favour of Decree Holder. There is no material on record to justify the claim of Objector to frame issues and to allow the parties to lead evidence in support of objections or in response thereto. The material on record is sufficient to consider and decide the objections filed by Objector.

41. In view of aforesaid discussion I do not find any merit in objections preferred by husband of Judgment Debtor. Accordingly objections are rejected and application is dismissed and disposed of.