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2012 DIGILAW 3415 (MAD)

S. Parimala v. A. Mayil

2012-08-01

ARUNA JAGADEESAN

body2012
Judgment :- 1. This is the objector's revision against the Executing Court's order dated 30.4.2011 made in unnumbered EA.No./2011 in EP.No.41/2007 in OS.No.1485/2006, whereby her objection under Order 21 Rule 58 of CPC was rejected as being untenable. 2. In the course of execution of a money decree, the property in question belonging to the judgement debtors/Respondents 2 and 3 was attached on 19.2.2008. After the attachment, the sale proceedings continued in accordance with the procedure prescribed under the respective Rules of Order 21 of CPC. It is not in dispute that finally the auction had taken place on 14.2.2011 and the sale was knocked down in favour of the 4th Respondent herein. It is equally not in dispute that the 4th Respondent/auction purchaserhas deposited the amount on 2.3.2011. It was posted for confirmation of sale on 19.4.2011. 3. The Revision Petitioner/objector filed a claim petition under Order 21 Rule 58 of CPC on 19.4.2011 and the same had been returned and subsequently, it was re-presented. Again the said petition has been returned on 21.4.2011 and it was represented on 27.4.2011. In the meantime, it appears that the sale was confirmed on 19.4.2011. 4. The Executing Court, vide the order which is impugned before me, held this objection as untenable, because of the debarring provision under proviso (a) of Rule 58(1) of Order 21 CPC. Since, according to the Executing Court, "sale" had already taken place, the subsequent objection of the Revision Petitioner/objector was not liable to be entertained. The objection, accordingly, was rejected and hence, the objector has filed the present Civil Revision Petition. 5. The learned counsel for the Revision Petitioner/objector has urged before me that the proviso (a) of sub rule (1) of Rule 58 of Order 21 of CPC is not attracted at all, inasmuch as the public auction sale dated 14.2.2011 could not be treated to be a sale. According to the learned counsel for the Revision Petitioner, unless the sale proceedings were fully completed and unless the sale was confirmed and was made absolute, it would be no sale in the eye of law and therefore, the objection under Order 21 Rule 58 of CPC could not be thrown out as untenable. 6. Mr.R.Sundar, the learned counsel for the Petitioner relied upon the judgement of the Honourable Supreme Court reported in 2008-14-SCC-258 (Kancherla Lakshminarayana Vs. 6. Mr.R.Sundar, the learned counsel for the Petitioner relied upon the judgement of the Honourable Supreme Court reported in 2008-14-SCC-258 (Kancherla Lakshminarayana Vs. Mattaparthi Syamala and others) wherein it has been held that the word "sold" in clause (a) of the proviso to Rule 58 has to be read meaning thereby a complete sale including confirmation of the auction sale and hence objection filed by the third party under Order 21 Rule 58 of CPC cannot be dismissed as untenable. 7. The learned counsel for the Petitioner also relied on the decision of the Kerala High Court reported in AIR-2003-Kerala-45 (Anthony Vs. Kunjavarankutty Hajee) wherein it is held that the claim petition cannot be dismissed on the ground of delay, as there is no period fixed for filing claim petition. The learned counsel strenuously contended that the objection filed under Order 21 Rule 58 of CPC should not be disposed of summarily and a full fledged enquiry is envisaged under the said provision. The learned counsel relied on the decision of the Delhi High Court reported in AIR-2000-Delhi-48 (Canara Bank Vs. Gurmukh Singh and others) in support of his contention. 8. On the other hand, Mr.T.R.Jeyapalam, the learned counsel for the 4th Respondent/auction purchasercontended that as soon as the sale is knocked down in auction, it is a 'sale' for purposes of the provisions of Order 21 Rule 58 of CPC. The learned counsel pointed out that the sale has been confirmed on 19.4.2011 even before the application filed by the objector has been entertained. The learned counsel also drew the attention of the court to the fact that even before the suit filed by the decree holder in OS.No.667/1999 which was renumbered as 1485 of 2000, on the file of the District Munsif, Madurai, a telegram was sent by the Plaintiff to the judgement debtors and Manimaran who is said to have purchased from the 1st Defendant/judgement debtor No.1. The Revision Petitioner/objector had purchased the property in question from the said Manimaran who had knowledge about the suit and the subsequent decree that was passed. The learned counsel contended pointing out to the above said sale transaction that the Revision Petitioner and her vendor Manimaran and the judgement debtors have colluded together and have set up title in favour of the Revision Petitioner in order to defeat the rights of the auction purchaser. 9. The learned counsel contended pointing out to the above said sale transaction that the Revision Petitioner and her vendor Manimaran and the judgement debtors have colluded together and have set up title in favour of the Revision Petitioner in order to defeat the rights of the auction purchaser. 9. Before going into the respective contentions made by the learned counsel on either side, it is relevant to refer to the provisions of Order 21 Rule 58 of CPC which speaks of adjudication of claims or objection to attachment of property. Sub rule (1) of Rule 58 speaks about that if 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 the said property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions contained in this rule. Sub rule (2) of Rule 58 speaks that all the questions including questions relating to right, title or interest in the property attached arising between the parties to proceedings or their representatives under the said rule and relevant to the adjudication of the claim or objection, shall be determinedby the court dealing with the claim or objection and not by 'separate suit'. 10. The Madhya Pradesh High Court in 2009-74-AIC-888 (Laxmi Sarda Vs. M/s.Khushal Chand Khimji and company and others) has explained the word 'adjudicate' as having wider connotation which includes recording the evidence as well. 11. The Honourable Supreme Court in 2008-14-SCC-258 (Kancherala Lakshminarayana Vs. Mattaparthi Syamala and others) has emphasized that the provisions of Order 21 Rule 58 of CPC read with the provisions of Order 21 Rule 101 spell out the duty of the Executing Court to adjudicate all the questions relating to the rights of the parties and determine the rights of the parties thereto. 12. Hence, it is well settled that Order 21 Rule 58 of CPC contemplates a full fledged enquiry into all questions including questions relating to right, title or interest in the property attached which arises between the parties to the proceedings and mandates that the court enquiring such a claim petition shall determine such questions. There is also an embargo on the institution of a separate suit for the determination of such above questions. 13. There is also an embargo on the institution of a separate suit for the determination of such above questions. 13. In the instant case, the Revision Petitioner/ objector has claimed to have purchased the property even on 27.10.2005 from his vendor Manimaran who in turn is said to have purchased from the 1st Defendant on 16.9.1999. The Revision Petitioner is said to be in possession and enjoyment of the suit property. It is not in dispute that the application under Order 21 Rule 58 has been filed on 19.4.2011 setting out the facts for raising the attachment and to declare that the revision petitioner is the owner of the attached property. The said application has been returned on 19.4.2011 and it appears that the confirmation of sale has been made on the same date. 14. The Honourable Supreme Court has held in 2008-14-SCC-258 (Kancherala Lakshminarayana Vs. Mattaparthi Syamala and others) that the auction purchasergets a right only on confirmation of sale and till then his right is nebulous and has only right to consideration for confirmation of sale. The Honourable Supreme Court has approved the view expressed by the Andra Pradesh High Court in Mugunta Mining Co. Vs. M.Kondaramireddy (AIR-1983-AP-335) and has laid down the law that even if the sale is effected under Rule 58, it cannot obliterate the claims of objections which were created prior to the sale. 15. At this juncture, it is pertinent to refer to the observations made by the Andhra Pradesh High Court in Mugunta Mining Co. Vs. M.Kondaramireddy (AIR-1983-AP-335) which has been extracted by the Honourable Supreme Court in the decision cited supra. It is statedas below:- "The provisions of Order 21 Rule 59 CPC show that where before a claim is preferred or objection made, and the property attached had already been advertised for sale, the court may, if the property is immovable, make an order, that, pending the adjudication of the claim or objection the property shall not be sold, or that pending such adjudication, the property may be sold but the sale shall not be confirmed and any such order may be made subject to such terms and conditions as to security or otherwise as the court thinks fit. This provision therefore provides that pending adjudication of a claim in respect of immovable property the court may proceed with the sale but stay the confirmation. This provision therefore provides that pending adjudication of a claim in respect of immovable property the court may proceed with the sale but stay the confirmation. Obviously this has been made with a view to expedite the sale proceedings so that in the event of the claim being rejected, the further proceedings can go on expeditiously. But it is clear that as long as the sale is not confirmed the status quo ante can be restored in case the claim is allowed. It has been held that once the claim petition is allowed the sale will be treated as void because the interest of the judgment-debtor that was sold did not in fact belong to him and the court auction-purchaser would not get any title to the property as the judgment-debtor had no interest therein and because the claimant continues to retain his interest in those properties (vide Bibi Umatul Rasul v. Lakho Kuer-AIR-1941-Pat-405). To the same effect is Madholal Damlal v. Gajrabi (AIR-1951-Nag-194): (AIR p. 197, para 17) ‘17. … “The terms of Order 21 Rule 63 are imperative and they declare that any order passed by the executing court is subject to the result of such a suit. In Phul Kumari v. Ghanshyam Misra (ILR-1908-35-Cal-202:1907-08-35-IA-22) Their Lordships of the Privy Council pointed out that the object of a suit under Section 283 Civil Procedure Code of 1882 which corresponds to Order 21 Rule 63 of the present Code is in effect to set aside a summary decision. When the claimant succeeds in getting a decree in his favour declaring his title to the property attached and that the property is not liable for attachment and sale in execution of a particular decree the executing court's power to sell the property in that execution proceeding must cease. The claimant's success in a suit under Order 21 Rule 63 ousts the jurisdiction of the executing court. If that is the result, the sale must be pronounced to be a nullity and consequently not capable of being confirmed under Order 21 Rule 92 Civil Procedure Code.'” (emphasis in original) 16. Bearing in mind the law laid down by the Honourable Supreme Court, in the present case, the claim application has been presented on 19.4.2011 on which date, the Executing Court seemed to have confirmed the sale after returning the application filed by the Revision Petitioner/ objector. Bearing in mind the law laid down by the Honourable Supreme Court, in the present case, the claim application has been presented on 19.4.2011 on which date, the Executing Court seemed to have confirmed the sale after returning the application filed by the Revision Petitioner/ objector. Hence, it is obvious that the claim application filed by the revision petitioner has not been disposed of in accordance with the provisions of Order 21 Rule 58 of CPC even though it was filed even before confirmation of sale. At this juncture, I am not inclined to traverse into the merits urged by the parties, as the contentions raised by the parties have to be substantiated by corroborative evidence and acceptable material. 17. It is needless to mention that the adjudication referred to under Order 21 Rule 58 of CPC not being summary and that it should be a decision as if rendered in a regular suit resulting in an appealable decree. Therefore, I am of the view that a fuller examination of the rights of the parties has to be held after giving the parties adequate opportunity to place all relevant materials, so that it could ultimately decide and adjudicate on all questions including questions relating to right, title or interest in the property attached which either directly or indirectly arise between the parties to the proceedings. This not having been done by the Trial Court, I am constrained to set aside the impugned order of the learned District Munsif, Madurai and remit the subject matter back to the learned District Munsif, Madurai for a fuller and detailed examination as contemplated under the provisions of Order 21 Rule 58 of CPC and for an ultimate decision after adjudication of the rights of the parties. 18. In the result, this Civil Revision Petition is allowed and the impugned order dated 30.4.2011 is set aside. The case is remanded back to the Executing Court to decide the objections filed by the Revision Petitioner/ objector after providing opportunity to the parties to lead evidence. The learned District Munsif, Madurai is directed to take up the application on file and dispose of the same, in the light of the observations made above, on merits and in accordance with law, as expeditiously as possible. No costs. Consequently, the connected MP is closed.