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2002 DIGILAW 594 (KAR)

SUSHEELA B. JAIN v. BHAWARLAL JAIN

2002-09-23

N.K.PATIL

body2002
N. K. PATIL, J. ( 1 ) THESE two revision petitions are filed by the petitioner directed against the order dated 13-8-2002 passed on LA. Nos. 8 and 9 in O. S. No. 46/98 on the file of the Civil Judge, (Sr. Dn), JMFC, Hospet. ( 2 ) THE respondent herein filed O. S. No. 46 of 1998 against the husband of the petitioner for recovery of certain amount and made an application for attachment of schedule property on the ground that schedule properties are being sold to defeat the fruits of decree that may be obtained by the plaintiff. In the said suit, the respondent plaintiff herein produced certain documents which clearly indicated that the schedule property item No. l did not belong to the petitioner herein. Inspite of this material, the trial Court without following the due process of law prescribed under the Code of Civil procedure, passed an order of attachment dated 26-9-1998, of the schedule property item No. 1 along with another, shown by the respondent-plaintiff herein. ( 3 ) ON coming to know of such order, an application was made by the petitioner for raising the attachment. The said application was rejected and C. R. P. 2993 of 1998 was filed by the petitioner herein which was disposed of by this Court in January 1999, with an observation that the petitioner can move the trial Court for raising of attachment for reasons and on grounds urged before it. ( 4 ) THEREAFTER, the suit filed by the respondent-plaintiff came to be dismissed on 1-2-2001 against which the respondent-plaintiff filed c. R. P. 837/2001. The said C. R. P. was allowed on 10-8-2001. Thereafter, the suit was taken on record and the petitioner herein preferred I. A. No. 9 for impleading her in the Suit and I. A. No. 8 for raising of attachment on the ground that the property attached before the judgment on the showing of the respondent-plaintiff itself do not belong to the husband of the petitioner and the contrary the same belongs to the petitioner. The said applications were resisted by respondent-plaintiff only the ground that there is no bona fides in the said applications and at the same time they did not dispute or deny the fact that the property attached belong to the petitioner herein. The said applications were resisted by respondent-plaintiff only the ground that there is no bona fides in the said applications and at the same time they did not dispute or deny the fact that the property attached belong to the petitioner herein. When the said applications came up for consideration, the Court below has rejected both the applications filed by the petitioner on the ground that unless the attachment order application is disposed of on merits the petitioner herein cannot get any cause of action to file I. As. 8 and 9. Aggrieved, the petitioner has come up before this Court in these revisions. ( 5 ) THE main argument canvassed by the learned Counsel for the petitioner is that finding of the Court below is perverse and contrary to the directions issued by this court in C. R. P. No. 2993/98, by which order, this Court has reserved liberty to the petitioner to take any objection which he wants or prefers any claim to the property in the trial Court which has attached before judgment shall consider and dispose of his claim. In spite of bringing this fact to the notice of the trial Court, the trial Court has not applied its mind in passing the impugned order. It is contended that the only ground on which the application was rejected is that there is a delay of four years in filing the application from the date of the attachment order. The learned counsel submitted that the suit for recovery itself was dismissed and the same was restored in C. R. P. 837/2001 hence, the relief of raising attachment could not be pursued and as such there is no delay in filing the applications. ( 6 ) THE learned Counsel for the petitioner further submitted that the reasoning assigned by the trial Court that the petitioner can convince the Court that attachment is not necessary and the same shall be raised, then attachment will be raised for the third party is not necessary, is not in accordance with the provisions of Code of Civil Procedure. It is therefore contended that the trial court instead of conducting enquiry as required under the relevant provisions of CPC, have erroneously rejected the request of the petitioner. It is therefore contended that the trial court instead of conducting enquiry as required under the relevant provisions of CPC, have erroneously rejected the request of the petitioner. ( 7 ) ON the contrary, the learned Senior counsel appearing for the respondent, inter alia contended that there is inordinate delay in filing the applications before the trial court. Secondly, it is contended that there is no cause of action available for the petitioner to file such applications before the trial Court and that the trial Court has rightly rejected the applications. He vehemently contended that the impugned order passed by the trial Court is strictly in accordance with the relevant provisions of CPC and that the petitioner has not made out any prima facie case. Accordingly he justified the impugned order passed by the trial court. ( 8 ) THE short question that arises for consideration is, whether the trial Court is justified in passing the impugned order ? ( 9 ) I have perused the records and gone through the impugned order. I have reassessed the matter with the assistance of the learned Counsel for the petitioner as also the respondent. ( 10 ) THE trial Court has committed an error in rejecting the applications filed by the petitioner. The trial Court ought to have followed the procedure prescribed in the Code of Civil Procedure and conducted a de novo enquiry as to whether the petitioner has made out a case for impleading and raising attachment. The trial Court has stick on to the sole ground of delay in rejecting the applications. It is revealed from the track of records that the original suit filed by the respondent for recovery was dismissed and was later on restored by the order passed in crp No. 837/2001. Immediately thereafter the petitioner has filed these applications. Therefore, the question of delay does not arise at all. ( 11 ) FURTHER, the trial Court has not applied its mind on the question as to whether the petitioner is entitled for relief of raising the attachment on facts and circumstances of the case. The reasoning assigned by the trial Court in this behalf are contrary to the material on record. ( 12 ) THERE is yet another reason for this court to set aside the impugned order passed by the trial Court. The reasoning assigned by the trial Court in this behalf are contrary to the material on record. ( 12 ) THERE is yet another reason for this court to set aside the impugned order passed by the trial Court. In view of the law laid down by this Court, the application filed by the third party claiming interest in the property attached is not to be treated as interlocutory application. It has to be treated and disposed of as Miscellaneous case. Therefore, the trial Court has proceeded without application of mind and without going into the well settled law laid down by this court stated supra. ( 13 ) IT is relevant to note that the CRP no. 2993/98 filed by the petitioner was disposed of on 4th January 1999, reserving liberty to the petitioner to take any objection which he wants or prefers any claim to the property in the trial Court which has attached before judgment shall consider and dispose of the claim. This observation is also not taken into consideration by the trial court. ( 14 ) HAVING regard to the facts and circumstances of the case and the legal position of the instant case, I do not find any justification to sustain the impugned order passed by the trial Court. For the foregoing reasons, the revisions filed by the petitioner are allowed. The impugned order passed by the trial Court on I. A. Nos. 8 and 9 8 in O. S. No. 46/98 is set aside. Consequently, I. A. Nos. 8 and 9 filed by the petitioner before the trial Court are allowed. The trial Court is directed to proceed with the matter and decide the same strictly in accordance with the relevant provisions of the Code of Civil procedure as expeditiously as possible, within a period of three months from the date of receipt of this order. Petition allowed. --- *** --- .