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2024 DIGILAW 592 (KER)

Saleena v. Mohamedkunhi

2024-05-31

ANIL K.NARENDRAN, HARISANKAR V.MENON

body2024
JUDGMENT : Harisankar V. Menon, J. This first appeal is filed by the applicant in E.A.No.5 of 2023 in E.P.No.32 of 2020 in O.S.No.7 of 2015 before the Subordinate Judge’s Court, Tirur. By the said order, the application presented under order XXI Rule 58 of the Code of Civil Procedure (for short, the ‘Code’) by the petitioner herein, has been rejected by the trial court. 2. The brief facts, necessary for the disposal of this appeal, are that the 1st respondent herein had filed O.S.No.7 of 2015 against the 2nd respondent herein. The above suit was decreed creating a charge on the properties of the 2nd respondent herein. For the realisation of the decree, the property of the 2nd respondent herein was put for sale in public auction on 19.7.2023, pursuant to the order of the execution court, which was sold in auction on 19.7.2023. The petitioner herein is none other than the daughter-in-law of the 2nd respondent herein. She had filed O.P.No.663 of 2023 before the Family Court, Tirur, for realising a sum of Rs.46,20,000/- from her husband and father-in-law (2nd respondent herein), being the value of her gold ornaments appropriated by them, along with I.A.No.2 of 2023 for attachment of the immovable property owned by the 2nd respondent (fatherin- law). It is stated that, she came to know from the office of the Sub Registrar that separate execution proceedings were pending before the Sub Court, Tirur, against the very same property, in a suit filed by the 1st respondent herein. In such circumstances, the petitioner herein filed E.A.No.5 of 2023 in E.P.No.32 of 2020 in O.S.No.7 of 2015 before the Sub Court, Tirur under Order XXI Rule 58 of the Code, for lifting the attachment. 3. The 1st respondent herein-decree holder entered appearance before the execution court and objected the application, pointing out that it is nothing but a collusive effort for salvaging the properties of the 2nd respondent herein. It is also pointed out by the decree holder that the petitioner and her husband are still living with the 2nd respondent in his house, which proves that the present application is a ruse to thwart the attempts to enjoy the fruits of the decree. 4. It is also pointed out by the decree holder that the petitioner and her husband are still living with the 2nd respondent in his house, which proves that the present application is a ruse to thwart the attempts to enjoy the fruits of the decree. 4. The trial court, by the impugned order dated 11.12.2023 found that an application under Order XXI Rule 58 of the Code can be filed only when there is an attachment made by the court, the details of which are not placed on record; that the claim petition is a delayed one; that there is no attachment in the suit, etc. Finding thus, and also relying on certain precedents as regards the circumstances under which Order XXI Rule 58 of the Code can be maintained, the execution court rejected the claim petition filed by the petitioner herein. 5. It is against the above order dated 11.12.2023, that this appeal is filed by the appellant. 6. We have admitted this appeal on 05.03.2024 and granted stay of further proceedings in the execution petition before the Sub Court, Tirur. 7. Today, we have heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1st respondent. 8. It is contended by the learned counsel for the appellant that the execution court went wrong in rejecting the claim petition. It is contended that the execution court issued the impugned order without proper adjudication and the finding that the application was delayed, is incorrect. Reference is also made to the attachment passed by the Family Court on 16.06.2023. It is only thereafter, that the appellant came to know about the execution proceedings before the execution court on account of which, no delay can be attributed. 9. It is contended on behalf of the 1st respondent-decree holder that as contended before the execution court, the present attempt by the appellant is only to salvage the properties of the 2nd respondent (father-in-law). He prayed that the appeal may be rejected. 10. We have considered the rival submissions of the contesting parties, and also perused the findings contained in the impugned order. 11. It is undisputed that the 2nd respondent had suffered a decree in a suit presented by the 1st respondent herein. The suit was instituted in 2015 (O.S.No.7 of 2015). He prayed that the appeal may be rejected. 10. We have considered the rival submissions of the contesting parties, and also perused the findings contained in the impugned order. 11. It is undisputed that the 2nd respondent had suffered a decree in a suit presented by the 1st respondent herein. The suit was instituted in 2015 (O.S.No.7 of 2015). The suit was decreed and for executing the same, the petition was filed by the decree holder. The property was put to sale pursuant to the orders of the execution court on 19.07.2023, on which date, the property was also sold. It is in the above background the maintainability or otherwise of an application under Order XXI Rule 58 of the Code is to be considered. 12. Order XXI Rule 58 of the Code reads 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. (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 (I), 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.” A reading of Order XXI Rule 58 of the Code makes it clear that a third party can present a “claim” or “objection” against an “attachment” of a property pursuant to the execution of the decree only before the property attached has already been sold. It is also clear that the claim is not entertainable, where the court considers that the claim or objection was designedly or unnecessarily delayed. 13. Here, the appellant-applicant has not even mentioned about the date of the order of attachment passed by the trial court in the petition filed by her, as recorded in paragraph 8 of the impugned order. In fact, there was no attachment of the property by the trial court. The property itself is sold in auction on 19.7.2023, on account of which, the embargo under Clause (b) of the proviso to Rule 58(1) comes into operation. Secondly, under Clause (b), the claim can be rejected, if the court considers that the claim or objection was unnecessarily delayed. Here, the appellant-applicant has presented a claim with reference to an attachment being obtained from the Family Court in an original petition instituted in the year 2023 against her husband and father-in-law (2nd respondent herein). She has a case that she came to know about the execution petition only from the office of the Sub Registrar later. However, the 1st respondent-decree holder has a specific case that the appellant and her husband are still living in the 2nd respondent’s house. This does not appear to have been proved otherwise by the appellant herein. In the appeal presented before this Court also, the said contention on behalf of the 1st respondent is not disputed. However, the 1st respondent-decree holder has a specific case that the appellant and her husband are still living in the 2nd respondent’s house. This does not appear to have been proved otherwise by the appellant herein. In the appeal presented before this Court also, the said contention on behalf of the 1st respondent is not disputed. From the totality of the circumstances pointed out above, we are of the view that the claim petition was one made with the ulterior motive of defeating the decree obtained by the 1st respondent herein in a suit instituted by him in 2015. Therefore, the embargo under clause (b) of the proviso to Rule 58 (1) also applies to the facts and circumstances of the case on hand. 14. Further, Order XXI Rule 58 of the Code can be invoked by a third party only in a situation where there is an “attachment” by the court in the execution of a decree. Here, it has come out that there was no attachment order by the trial court. Instead, pursuant to the charge decree, the property was put to sale. The property has been put to sale pursuant to the decree obtained by the 1st respondent against the 2nd respondent herein. The appellant-applicant has sought to invoke Order XXI Rule 58 of the Code with reference to the property of the 2nd defendant, on the basis of the attachment, she obtained from the Family Court. In this connection, a reference to Order XXXVIII Rule 10 of the Code would be beneficial. The said Rule reads thus: “10. Attachment before judgment not to affect rights of strangers, nor bar decree holder from applying for sale. Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, not bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.” Thus, under Order XXXVIII Rule 10 of the Code, even if there is an attachment obtained by the appellant-applicant from the Family Court against the property of the 2nd respondent herein, the same property can be brought to sale by the 1st respondent herein who has already obtained a decree against the 2nd respondent. 15. 15. A Division Bench of this Court in Ammini v. Vibeesh [ 2019 (3) KLT 147 ] has laid down the following proposition: “The nature of decree charging payment of money in the property of a defendant in a suit for money is such that the right of the holder of decree to recover money from the property by sale is determined at the time of passing the decree. Therefore, the objection to attachability or saleability of property bearing charge cannot be said to be a matter arising before a court executing the decree. This is notwithstanding the fact that there is no need for the holder of such a charged decree to seek attachment of property which is already subject to charge since charge always runs with the land irrespective of subsequent transfers.” Thus, insofar as there is no attachment of the property in question by the trial court and since the execution application was preferred on the basis of the charge decree, the sale of the properties cannot be interfered by virtue of a petition under Order XXI Rule 58 of the Code. 16. To the same effect is the judgment of the Division Bench of this court in Fousiya v. Rajula [ 2020(1) KLT 5 ]. In that case, with respect to the powers available to the court under Order XX1 Rule 58 of the Code, the Division Bench held as under: “A question may incidentally arise in this context as to whether charge created over the property could also be sought by the claimant to be set aside in the same claim petition invoking the provisions in Order XXI Rule 58 of the Code. Looking at the language and the terms used in Order XXI Rule 58, it is manifestly clear that court doesn’t have any power under the said provision to interfere with an order creating charge over the property. The court’s power to proceed under Order XXI Rule 58 of the Code and adjudicate upon questions relating to right, title and interest in the property accrues only when the claimant is interested in challenging the order of attachment on the ground that property was not liable to attachment. The court’s power to proceed under Order XXI Rule 58 of the Code and adjudicate upon questions relating to right, title and interest in the property accrues only when the claimant is interested in challenging the order of attachment on the ground that property was not liable to attachment. In other words, except when property is under attachment and it is sought to be lifted, the court cannot under any circumstances assume power under Order XXI Rule 58 and proceed to decide a claim put forward by a third party seeking adjudication of his purported rights in the property. Enquiry contemplated under Order XXI Rule 58 into the rights or interests of the claimant is directed exclusively towards examining the sustainability or legality of the order attaching the property. It does not extend to any other situations nor to any person complaining that an order creating change was illegal or wrongly passed by the court in respect of his property. 14. An order attaching a property and an order creating charge on a property are different concepts of law and one cannot be mistaken for the other. Attachment is intended to interdict private transfer or delivery of the property as stipulated by Section 64 of the Code. It neither creates any title nor any encumbrance. But a charge, on the other hand, gives to its holder a right to payment of money out of the property charged whether by decree or operation of law. A decree or order creating charge over a property in a suit or proceeding is an outcome of final adjudication of rights and liabilities of the parties to lis. But an order of attachment passed by a court is not so and it stands on a different footing. While it is open to a third party affected by attachment to approach the court by preferring a claim or objection under Order XXI Rule 58 and seek lifting of attachment, he cannot seek to assail the legality or validity of an order creating charge over the property invoking the jurisdiction of the court under the same provision. His remedy under law lies elsewhere.” Thus, an order by which an attachment of a property is effected and a decree creating a charge over the property in a suit stands on different pedestals. His remedy under law lies elsewhere.” Thus, an order by which an attachment of a property is effected and a decree creating a charge over the property in a suit stands on different pedestals. It is only when there is an attachment over the property, question of invoking Order XXI Rule 58 of the Code may arise. Here, as found earlier, there is no attachment over the property and the proceedings culminating in the sale were pursuant to the decree. Therefore, the impugned order cannot be found fault in any manner. On the whole, we find no merit in this appeal. Therefore, the appeal is dismissed.