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2002 DIGILAW 235 (KAR)

RAVINDERA SHEREGARA v. SYNDICATE BANK

2002-03-27

body2002
A. V. SRINIVASA REDDY, J. ( 1 ) THE petitioner feels aggrieved by the order dated 18-8-2001 passed by the Court-below on I. A. No. IV filed under Or. 21, Rules 58 and 59 CPC for raising the attachment of movables. ( 2 ) THE respondent-Bank filed the suit O. S. 782/89 against one M/s. Shakti Marine Engineering Works for recovery of Rs. 24,219. 50 with interest and costs. The present petitioner though, had nothing to do with the suit, impleaded himself in the said suit as third defendant. The respondent-Bank on the strength of the hypothecation of the machineries of M/s. Shakti Marine Engineering Works obtained an order of attachment before judgment. On 18-6-1992 the suit came to be decreed. The present petitioner did not take any steps to raise the attachment before judgment of the movables of M/s. Shakti Marine Engineering Works during the pendency of the suit O. S. 782/89. Nor did he question the judgment and decree rendered in O. S. 782/89, in appeal. However, the petitioner filed a suit O. S. 268/1993 for the relief of declaration on the ground that the respondent-bank is not entitled to bring the machinaries for sale on the strength of the decree obtained in O. S. No. 782/89. In O. S. No. 268/1993 the petitioner for the first time took up a stand that the movables did not belong to M/s. Shakti Marine Engineering Works and in fact they belonged to him. It was further alleged by the petitioner that those very goods which are the subject matter of the suit in O. S. No. 782/89 were hypothecated by him to the K. S. F. C. and he as the proprietor of M/s. Karavali Engineering Works is the absolute owner of those movables. This suit filed by the petitioner came to be dismissed on 5-7-2000. The petitioner did not prosecute the matter further. When the respondent filed the execution petition, the petitioner filed I. A. IV for raising attachment of movables. The Court-below dismissed I. A. No. 4. Aggrieved, the petitioner has come up in this revision petition. ( 3 ) I have heard the learned counsel on both sides and perused the records. The petitioner did not prosecute the matter further. When the respondent filed the execution petition, the petitioner filed I. A. IV for raising attachment of movables. The Court-below dismissed I. A. No. 4. Aggrieved, the petitioner has come up in this revision petition. ( 3 ) I have heard the learned counsel on both sides and perused the records. ( 4 ) THE petitioner, admittedly, had figured in both the suits, one filed by the respondent-bank in which he impleaded himself and another filed by himself and the subject matter of both these suits are the one and the same movables. In the suit filed by the bank, which is earlier in point of time, the petitioner impleaded himself as party-defendant but never laid claim to these movables as owner or in any other capacity. Nor did he claim that he was in possession of these movables. The Court having decreed the suit in favour of the plaintiff-Syndicate Bank, the bank sought to execute the decree by sale of the attached movables. It is, then, the petitioner filed O. S. No. 268/93 which also came to be dismissed. In O. S. No. 268/93 the petitioner had also admitted to the fact that the movables which are the subject matter of the suits are in possession of one Vasudeva Sheregar in his capacity as custodian. This Vasudeva Sheregar had also been arrayed as defendant No. 3 by the petitioner in O. S. No. 268/93. During the pendency of the suit in O. S. No. 268/93 the petitioner filed I. A. No. IV in Ex. Case No. 107/93 filed by the present respondent for sale of the movables under attachment. The Court-below, taking note of all these admitted facts, dismissed I. A. No. IV filed by the petitioner herein. The order passed by the Court-below dismissing I. A. No. 4 is impugned herein. ( 5 ) ORDER 21, Rule 58 CPC lays down the rules as to how any claim or objection to the attachment of any property under attachment in a suit is to be dealt with by the executing Court. It reads :"58. The order passed by the Court-below dismissing I. A. No. 4 is impugned herein. ( 5 ) ORDER 21, Rule 58 CPC lays down the rules as to how any claim or objection to the attachment of any property under attachment in a suit is to be dealt with by the executing Court. It reads :"58. Adjudication of claims to, or objections to attachment of, property.- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained : provided that no such claim or objection shall be entertained- (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, the title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-Rule (2), the Court shall, in accordance with such determination.- (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-Rule (1), refuses to entertain it, the party against whom such order is made institutes a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. "a Court dealing with an objection or a claim over property under attachment has two options before it. It can either decline under the proviso to sub-rule (1) of the Rule 58 to entertain the claim or objection, if it is of the opinion that the said claim or objection is covered by sub-clauses (a) or (b) of the proviso or it can proceed to determine the questions arising between the parties to the proceeding under sub-rule (2) of Rule 58. If an adjudication is made under sub-rule (2), the Court has to pass an order under sub-rule (3 ). But, if the Court declines to entertain the claim, acting under the proviso to sub-rule (1) of the Rule, it is, then, open to the party against whom such an order is made to institute a suit acting under sub-rule (5) of the Rule to establish his right. Any order made under the proviso to sub-rule (1), in the event of the affected party preferring a suit to establish a right, would be subject to the decision in the suit. ( 6 ) IN the case on hand, the petitioner all through had knowledge that the property in question was the subject matter of the suit between the respondent-Bank and M/s. Shakti Marine Engineering Works. He even got himself impleaded in the suit but stayed put even though the property was got attached before judgment. He waits till the disposal of the suit and only when the property was about to be brought to sale, he wakes up and makes an application under Rule 58. These acts have been admitted by the petitioner himself. He even got himself impleaded in the suit but stayed put even though the property was got attached before judgment. He waits till the disposal of the suit and only when the property was about to be brought to sale, he wakes up and makes an application under Rule 58. These acts have been admitted by the petitioner himself. In such a situation the Court-below acting under sub-Clause (b) of the proviso to sub-Rule (1) could have declined to entertain the application I. A. 4. But, the Court-below has lost sight of the said clause under sub-Sec. 1. Nevertheless, it has, acting under sub-Rule (2), proceeded to examine all questions relating to right, title or interest in the property attached and has found that the petitioner had not established his right or title over the property under attachment. Upon determination of the question of title the Court-below has disallowed the objection of the petitioner. The Court having done that, the order made in I. A. No. 4 amounts to a decree and can be challenged only in appeal. To make matters more clear, I quote sub-Rule (4) again :"where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. " (underlining is mine) thus, the challenge made to the impugned order in this revision under Sec. 115, treating it as an interlocutory order, is not maintainable. ( 7 ) BEFORE I part with this case, it would not be out of place to state here that the petitioner is not entitled to the option of filing a suit as provided under sub-Rule (5 ). The remedy is available to an affected party under sub-Rule (5) only against an order made under the proviso to sub-Rule (1 ). Where the Court has disallowed the claim or objection acting under sub-Rule (3) of Rule 58, as in the present case, the order so made amounts to a decree and is appealable. No fresh suit can be instituted by the affected party for once again determining his right over the property, which right had already been adjudicated upon in the execution proceedings. No fresh suit can be instituted by the affected party for once again determining his right over the property, which right had already been adjudicated upon in the execution proceedings. ( 8 ) IN the result, I find no merit in this revision, apart from the fact that the C. R. P. is not maintainable, and it is, accordingly, dismissed with costs of Rs. 1000/ -. Petition dismissed. --- *** --- .