JUDGMENT : This execution second appeal has been filed under order XXI read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging verdicts entered into by the trial court as well as the Appellate Court in A.S. No.62 of 2021 dated 20.06.2023 on the files of the Court of the Addl. District Judge-II, Alappuzha arose from the verdict in E.A. No.117/2019 in E.A. No.242/2018 in E.P. No.348/2016 in O.S. No.46 of 2006 dated 18.12.2019 on the files of the Sub Court, Alappuzha. The appellant is the decree holder, 1st respondent is the claim petitioner and respondents 2 to 4 are judgment debtors. 2. Heard both sides in detail. Perused the case records and verdicts under challenge. 3. I shall refer the parties in this appeal with reference to their status before the trial court. The appellant will be referred as “decree holder” and the respondents will be referred as “claim petitioner and judgment debtors”. 4. This appeal stands admitted by formulating the following substantial questions of law: 1. Whether a petition under Order 21 Rule 58 of CPC is maintainable after completion of sale in view of the prohibition contained in the proviso (a) thereof? 2. What is the remedy of a 3 rd party in possession claiming independent right over the decree schedule property, when he was sought to be dispossessed by the decree holder? Incidentally, another simple question arises for consideration is, Whether the Courts below failed in appreciating the evidence while adjudicating the claim relied on Ext.A1 title deed of the claim petitioner ignoring Ext.A1 mortgage deed marked in O.S. No.46/2006? 5. In this matter, the suit was filed for realization of an amount of Rs.40,000/-as the principal amount along with the interest. The suit was decreed allowing the plaintiff to realize Rs.1,00,428/-along with interest at the rate of 6% per annum or the principal amount of Rs.40,000/-from the date of suit till realization by sale of the plaint schedule property and if the sale proceeds is insufficient, from the defendants and their assets. 6. Thereafter, the decree holder filed E.P. No.348/2016. During the execution proceedings, 3.5 cent form part of the plaint schedule property, which was found to be sufficient to realize the decree debt, was separated from the entire extent of mortgaged property and sold in execution. The sale was on 27.11.2017. 6. Thereafter, the decree holder filed E.P. No.348/2016. During the execution proceedings, 3.5 cent form part of the plaint schedule property, which was found to be sufficient to realize the decree debt, was separated from the entire extent of mortgaged property and sold in execution. The sale was on 27.11.2017. The decree holder auctioned the plaint schedule property and on 29.01.2018 the sale was confirmed and E.P. was closed. The sale certificate was issued on 19.04.2018. Thereafter, the decree holder filed E.A. No.242/2018 for delivery. At this juncture, E.A. No.117/2019 has been filed by the claim petitioner to declare the sale as null and void and also to declare that the sale certificate issued by the Court as null and void, on the ground of fraud. 7. E.A. No.117/2019 is one filed under Section 151 of CPC. The learned Munsiff adjudicated the same after recording evidence. PWs 1 and 2 examined and Exts.A1 to A5 marked on the side of the petitioner. No evidence let in by the otherside. 8. Thereafter, the learned Munsiff found that the claim petitioner is the absolute owner of the petition schedule property. The learned Munsiff declared the sale as null and void and found that the same is not binding upon the claim petitioner. 9. Though, decree holder filed appeal vide A.S. No.62/21 before the Appellate Court, the Appellate Court also dismissed the same as per the judgment dated 20.06.2023. 10. The learned counsel for the decree holder/appellant vehemently canvased the legal position that as per Ext.A1 the original mortgage deed (hereinafter will be referred as the ‘mortgage deed’) marked in the suit, property having an extent of 17.40 Ares in Survey No.164/2020 and in Re survey No.228/4 was mortgaged by the executants of Ext.A1 title deed (hereinafter will be referred as ‘title deed of the claim petitioner’) relied on by the claim petitioner. The learned counsel for the decree holder/appellant read out the prior title deed mentioned in the title deed of the claim petitioner as well as in the mortgage deed. On reading the derivation of title described therein, it is emphatically clear that the mortgage deed was created by respondents 2 to 4 herein after describing their prior title deed as document No.105/1996, whereby the executants of the mortgage deed obtained right over the plaint schedule property. On reading the derivation of title described therein, it is emphatically clear that the mortgage deed was created by respondents 2 to 4 herein after describing their prior title deed as document No.105/1996, whereby the executants of the mortgage deed obtained right over the plaint schedule property. On perusal of the title deed of the claim petitioner, the derivation of title is exactly similar, subject to one addition. The same is, while describing the Resurvey number in the mortgage deed, the Resurvey number is shown as 228/4 and in the title deed of the claim petitioner, the same is described as Resurvey No.228/4-2. Apart from this further sub division, nothing to be gathered to hold that the properties are different. 11. It is submitted by the learned counsel for the decree holder/appellant that, though, E.A. No.117/2019 was filed quoting Section 151 of CPC, the same deemed to be one filed under Order 21 Rule 58 of CPC and in view of proviso (a) to Order 21 Rule 58 of CPC, the claim petition preferred after the sale of the property is not maintainable. Therefore, E.A. No.117/2019 is not maintainable. He also placed decision of the Division Bench of this Court reported in Anthony v. Kunjavarankutty Hajee [2002 KHC 411 : 2002 (2) KLT 181 : ILR 2002 (2) Ker.601 : AIR 2003 Ker.45], to buttress this contention. 12. While summarizing the arguments, it is pointed out by the learned counsel for the decree holder further that deeming that the claim petition is one maintainable, then also the title deed relied on by the claim petitioner is to be held as a document created in collusion between the judgment debtors and the claim petitioner, since the claim petitioner is none other than the son of the 1st judgment debtor, in order to defeat delivery of the property covered by the sale certificate having an extent of 3.5 cent of property. It is also pointed out that in the title deed of the claim petitioner, the total sale consideration is stated as only Rs.25,000/-, even though the said property was mortgaged for availing loan of Rs.40,000/-, much prior to the execution of the title deed of the claim petitioner. 13. It is also pointed out that in the title deed of the claim petitioner, the total sale consideration is stated as only Rs.25,000/-, even though the said property was mortgaged for availing loan of Rs.40,000/-, much prior to the execution of the title deed of the claim petitioner. 13. Repelling this contention, the learned counsel for the claim petitioner attempted to point out that the property mortgaged and sold in execution, covered by sale certificate is the property covered by the title deed of the claim petitioner and not the property covered by the mortgage deed. The learned counsel for the claim petitioner also referred judgment of this Court in O.P.(C) No.1782 of 2019 dated 13.11.2019. A copy of the same has been placed by him and the said judgment in sum and substance directed early disposal of Ext.P5 i.e. the present claim petition E.A. No.117/2019 and no other observations could be found from the said judgment. Subsequently, the learned counsel for the claim petitioner conceded that the property covered by the sale certificate and the mortgage deed are one and the same. 14. While answering the first substantial question of law, it is apposite to refer Order 21 Rule 58 of CPC and its proviso. The same is as under: 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. 15. Reading proviso (a) to Order 21 Rule 58 of CPC, the legal mandate is clear that, no claim petition or objection under Order 21 Rule 58 of CPC shall be entertained, when the property attached was already been sold. 15. Reading proviso (a) to Order 21 Rule 58 of CPC, the legal mandate is clear that, no claim petition or objection under Order 21 Rule 58 of CPC shall be entertained, when the property attached was already been sold. In Anthony’s case (supra), the Division Bench of this Court considered the impact of proviso (a) and (b) to Order 21 Rule 58 of CPC and held as under: Thus, the Court before which the petition comes for adjudication will not entertain the application, if the property, which is attached is also sold or where the claim or objection is unnecessarily delayed. When this Provisos is there, we cannot import the period prescribed under the Limitation Act. If Art. 137 of the Limitation Act applies, then Clauses (a) and (b) of the proviso to O.21 R.58 of CPC will become otiose. We can never intend that a rule or provision was made unnecessarily. Further a claim petition can be filed so long as the attachment subsists. There was difference of opinion earlier as to whether a claim petition can be filed the sale is held. One view was the attachment merges in the sale and hence no claim petition can be filed under O.21, R.58 after the sale. By the 1976 amendment this controversy had been set at rest. Hence, we are of the view that there is no particular period prescribed for filing the claim petition. The court can entertain a claim petition subject to restrictions mentioned in Clauses (a) and (b) of the Proviso. In the present case, we find that the sale has not been held. It is further found that the petitioners have approached the court as soon as they came to know that the property was to be sold. That discretion, according to us, has been properly exercised by the court below. Hence, according to us, the claim petitions cannot be thrown out on the ground of delay. Before we conclude our discussions on this point, we have to make it clear the following. Proviso to O.21 R.58(1) of CPC states that a claim petition cannot be entertained on two grounds. Further it states under clause (5) if the claim petition is not entertained on the grounds mentioned in sub-s. (1), the party is entitled to file separate suit. Proviso to O.21 R.58(1) of CPC states that a claim petition cannot be entertained on two grounds. Further it states under clause (5) if the claim petition is not entertained on the grounds mentioned in sub-s. (1), the party is entitled to file separate suit. Hence, before the court proceeds with the enquiry in a petition under O.21 R.58 of CPC the Court has to find out whether it can be entertained in view of the conditions under clauses (a) or (b). Only if it is found that a claim petition can be entertained then only it need be posted for evidence on merits. We find in many cases, all the issues are tried together. There is no use in finding that the claim petition is not maintainable after asking the parties to adduce on merits.” 16. The ratio laid down in the above decision is that, the Court can entertain a claim petition subject to the restrictions mentioned in Clauses (a) and (b) of the proviso. If so, a claim petition filed under Order 21 Rule 58 of CPC, after completion of sale is not maintainable. However, in Anthony’s case (supra), the Division Bench held further that, when all the issues are tried together, there is no use in finding that the claim petition is not maintainable, after asking the parties to adduce evidence to decide the matter on merits. 17. The second substantial question of law is, what is the remedy of a 3rd party in possession claiming independent right over the decree schedule property when he was said to be dispossessed by the decree holder? Going by the mandate of Order 21 Rule 97 of CPC, where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. 18. 18. The Apex Court interpreted the expression ‘any person’ under sub clause (1) of Rule 97 in the decision reported in [AIR 1998 SUPREME COURT 1827] Shreenath and another v. Rajesh and others and held that the use of the words 'any person', includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger. Under the Law as it stood prior to 1976 amendment as well as after the amendment the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under O.21, R. 97, has to be decided by the Executing Court itself. R.100 of the old law and R.99 of the new law covers cases where persons other than judgment-debtor is dispossessed of immovable property by the decree-holder, of course, such cases are also covered to be decided by the Executing Court. But this will not defeat the right of such person to get his objection decided under R. 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication is to be under R. 97 and in case dispossessed, adjudication is to be under R. 100 (old law) and R. 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under O. 21, R. 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree holder. Thus the second substantial question of law answered as above. 19. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree holder. Thus the second substantial question of law answered as above. 19. In an earlier decision rendered on 11.09.2003 reported in [2011 KHC 5341 : 2011 (15) SCC 377 ] Har Vilas v.Mahendra Nath and Others, the Apex Court held that, a third person claiming to be in possession of property forming subject-matter of decree in his own right can resist delivery of possession even by filing an objection under O.21 R.97 in executing court itself and objection shall have to be determined by executing court itself -Provisions of R.100 of the old CPC, equivalent provision whereof is R.99 in new CPC will not defeat right of such person to get his objection decided under R.97 which is a stage prior to his dispossession. 20. In the instant case, even though the petition is one filed under Rule 151 of CPC, the same is to be treated as a petition under Order 21 Rule 97 of CPC. Therefore, the petition is perfectly maintainable and the adjudication thereof in view of Order 21 Rule 101 is also perfectly in order. 21. Coming back, as I have already pointed out, the property mortgaged by the judgment debtors is the property obtained by the claim petitioner as per document No.105/1996. As per the mortgage deed the said property was mortgaged for the purpose of availing loan. Out of which, only 3.5 cent of property was separated and sold in execution of the decree, which was thereafter auctioned by the decree holder and therefore, I have no hesitation to hold that the Execution Court as well as the First Appellate Court lost sight of the above vital aspect, because of the perverse appreciation of evidence. It is shocking to note that the Execution Court as well as the First Appellate Court even not cared to read the recitals in the mortgage deed and the title deed of the claim petitioner. Therefore, the orders under challenge, which are against facts and law, are liable to be set aside. 22. In the result, this second appeal succeeds and the same stands allowed. Therefore, the orders under challenge, which are against facts and law, are liable to be set aside. 22. In the result, this second appeal succeeds and the same stands allowed. Accordingly, the verdicts under challenge stand set aside and it is held that the sale certificate issued in favour of the decree holder is legal and valid and the decree holder is at liberty to go with delivery of possession, as per law. At the fag end, a suggestion was made from the side of the claim petitioner to settle the matter. Therefore, settlement can be considered, in accordance with law, during consideration of the delivery petition, which is pending before the Execution Court.