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2022 DIGILAW 1895 (MAD)

Kalyani v. Sekar

2022-07-05

P.T.ASHA

body2022
JUDGMENT : (Prayer: Appeal filed under Order 41 Rule 1 and Section 96 of CPC, against the judgment and decree dated 30.09.2004 made in CMANo.6 of 2004 passed by the Principal Subordinate Judge, Villupuram confirming the Judgment and Decree dated 28.08.2003 made in E.A.No.463 of 2003 in E.P.No.75 of 2002 in O.S.No.46 of 2001 on the file of the Principal District Munsif, Thirukoilur, Villupuram District.) The 3rd party claimants are the appellants before this Court, challenging the dismissal of their petition filed invoking the provisions of Order 21 Rule 58 of the CPC. The brief facts of the case are as follows:- 2. The 1st respondent herein had borrowed a sum of Rs.25,500/- from the 2nd respondent on 10.01.1999, since the amounts were not repaid the 2nd respondent had initiated a suit for recovery of money against the 1st respondent in O.S.No.46 of 2001 on the file of the Principal District Munsif, Thirukoilur. The suit was decreed on 26.08.2001 for a sum of Rs.26,700/- with interest at 9% on Rs.22,500/-. Thereafter on 11.02.2002 the 2nd respondent had filed E.P.No.75 of 2002 for attaching the property belonging to the Judgment debtor and to bring it for sale. On 09.04.2002 the petition mentioned property was attached. The properties were brought to sale and on 28.08.2003 the decree holder had participated in the bid and purchased the property in auction. A day prior to that the claimants had filed E.A.No.463/2003 invoking the provisions of Order 21 Rule 58 stating that the property in question was a joint family property in which the judgment debtor/1st respondent had only one share. The remaining share belong to the petitioners/ appellants herein. They would in their claim petition state that they became aware about the auction purchase only on 25.08.2003 and immediately steps have been taken to initiate the proceedings. 3. The 2nd respondent had filed a counter in which they had admitted that the property were ancestral property but they would contend that the money was borrowed by the 1st respondent only as a Karta of the family for meeting the family needs. The claim petition was ultimately dismissed by the Principal District Munsif, Thirukoilur by holding that an application under Order 21 Rule 58 was not the remedy envisaged. Challenging the same the appellants herein had filed CMA.No.6/2004 on the file of the Principal Subordinate Judge, Villupuram. 4. The claim petition was ultimately dismissed by the Principal District Munsif, Thirukoilur by holding that an application under Order 21 Rule 58 was not the remedy envisaged. Challenging the same the appellants herein had filed CMA.No.6/2004 on the file of the Principal Subordinate Judge, Villupuram. 4. The learned Judge also concurred with the order of the Trial Court and held that no documents were provided to show that the property was being jointly enjoyed and also that the loan had been borrowed by the 1st respondent only as the Karta of the family. It is this order that is the subject matter of the challenge before this Court. 5. Mr.Senthilnathan, learned counsel appearing on behalf of the appellant would submit that both the Courts below have failed to consider the provisions of Order 21 Rule 58(2) of the Civil Procedure Code which stipulates that the Court cannot relegate the parties to file a separate suit but in the instant case, both the Courts below have shirked their responsibility of considering the issue. 6. The provisions of Order 21 Rule 58 is extracted herein below- 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, 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. (2) All questions (including questions relating to right, 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, 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 may institute 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. From the reading of the above it is clear that all issues regarding the right, title and interest to property has to be considered by the Executing Court itself. The learned counsel for the appellant would also point out the fact that the application had been filed on 27.08.2003 and the order came to be passed on the very next day which clearly shows that sufficient time has not been granted to the petitioners to make their submissions. He would rely upon the Judgment reported in M/s.Southers Steelmate & Alloys Ltd., Vs. B.M.Steel in support of his contention that where the executing Court has to consider the application filed under Order 21 Rule 58(2) as a suit and not dispose it summarily. Further the speed with which the application had been disposed of would clearly show that the order has been hastily rendered. 7. B.M.Steel in support of his contention that where the executing Court has to consider the application filed under Order 21 Rule 58(2) as a suit and not dispose it summarily. Further the speed with which the application had been disposed of would clearly show that the order has been hastily rendered. 7. Per contra Mr.V.Lakshminarayanan, learned counsel appearing on behalf of the respondent would submit that the very petition is a delayed one and therefore, hit by the provisions of Order 21 Rule 58(1)(b). Further the appellants have themselves not demanded that the application be heard as a suit. Therefore, he would also submit that despite the best efforts the property could not be sold at the upset price fixed and thereafter the upset price has to be reduced and ultimately the Decree holder has bid in the auction and purchased the property. He has also taken possession. Therefore, considering the delay in filing the claim, the appeal should fail and the orders of the Courts below confirmed. 8. Heard both the counsels. 9. A perusal of the order passed in EA.No.463/2003 would clearly indicate that none of the defences which has been raised by the appellants in their claim petition has been considered. The Court has simply proceeded on the ground that the parties have to file a suit for partition and thereafter approached the Court. This is rather fallacious in the light of the provisions of Order 21 Rule 58 (2). Since the provisions of Order 21 Rule 58 (2) has not been complied with in its letter and spirit, the matter should be remanded back to the Principal District Munsif, Thirukoilur for fresh consideration. 11. In fine, the appeal is allowed and the matter remitted back. The learned Principal District Munsif, Thirukoilur shall permit both the parties to let in fresh evidence and raise all the objections available to them under the provisions of Order 21 Rule 58 of the Civil Procedure Code and pass orders thereupon. No costs. Consequently, the connected Miscellaneous Petition is closed.