A.N. Kannappa Chettiar and another vs Nachiamani alias Manianmalai and Another

Sengottuvelan, J.—This civil miscellaneous appeal arises out of the order passed by the Subordinate Judge, Devakottai, in E.A. No. 50 of

1980 in E.P. No. 63 of 1979 in O.S.24 of 1975, dated 20th March, 1980. The first respondent in E.A.50 of 1980 filed E.P.63 of 1979 bringing

the properties mentioned in the schedule to the execution petition to sale as belonging to the deceased Sathappa Chettiar. Accordingly, the

executing court ordered attachment which was effected on 2nd June, 1973. The respondents in this appeal filed E.A.50 of 1980 under O. 21, R.

58 C.P.C., praying for the release of the properties from the attachment on the ground that they are the absolute owners of the properties. The

executing court, by the impugned order, allowed the claim application and directed the release of the properties from the attachment. As against

the said order, this appeal is filed.

Mr. B. Rajagopalan, counsel appearing for the appellants, raises the following contentions in support of his argument that the conclusion arrived

at by the executing Court is not sustainable (1) After the amendment to C.P.C., in the year 1976, an application under O. 21, R. 58, C.P.C., will

have to be tried as if it is a suit and findings will have to be given after due consideration of the evidence in the case and executing court had not

considered the evidence and given necessary findings; and (2) The evidence let in on behalf of the decree-holder and the third party claimants had

not been duly considered and a conclusion arrived at.

As far as the first point is concerned, the proposition that an application under O. 21, R. 58 C.P.C., will have to be tried as a suit, is evident

from O. 21, R. 58, sub-R. (2) and (4) of the C.P.C., according to which the claims will have to be investigated as a suit and the adjudication

treated as if it were a decree. Hence, we have to see whether the learned Subordinate Judge has considered the evidence adduced before him as

in a suit and rendered necessary findings. On a perusal of the order of the executing Court, it is seen that the Subordinate Judge has not considered

the entire evidence let in before him by the decree-holder, namely, the property on the date of the attachment, was in possession of the judgment-

debtor in spite of the sale deed Ex. A1 and that no right passed under the sale deed Ex. A1. The learned Subordinate Judge, Devakottai, allowed

the application on the sole ground that the decree holder had not produced any documents showing that the judgment-debtor was in possession of

the property on the date of attachment. The grievance of the appellants is that the entire evidence of P.W.1 had not been fully considered.

On behalf of the respondents in this appeal, it is contended that the sale itself is prior to the date of loan which ripened into a decree and the said

sale was executed for due and proper consideration and that the fact that the respondents herein are in possession of the property is evident from

Ex.A2 to A9, and as such, the Subordinate Judge is justified in allowing their application E.A.50 of 1980.

On behalf of the respondents, it is further contended that since the attachment in this case is effected on 9th April, 1975, prior to the amendment

of the CPC as per S. 97(i) (Amending Act 104 of 1976), only the provisions of the old Code is applicable and as such, no appeal lies from the

order allowing the claim application in this case. It is also the contention of the respondents that the learned Subordinate Judge has considered all

the matters and as such the order will have to be sustained.

With reference to the first contention, reference will have to be made to S. 97 sub-S. (q) of amending Act 104 of 1976 which reads as follows-

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S. 97(q) (Amendment Act 104 of 1976):

The provisions of Rr. 31, 32, 48-A, 57 to 59, 90 and 97 to 100 of O. 21 of the first Schedule as amended or as the case may be substituted or

inserted by S. 72 of this Act shall Dot apply to or affect--

(i) any attachment subsisting immediately before the commencement of the said S. 72, or

(ii) any suit instituted before such commencement under R.63 aforesaid to establish right to attached property or under R. 103 aforesaid to

establish possession, or

(iii) and proceeding to set aside the sale of any immovable property

and every such attachment, suit or proceeding shall be continued as if the said S. 72 had not come into force.

It is specifically stated that in respect of an attachment subsisting immediately before the commencement of Act 104 of 1976, proceedings shall be

continued as if S. 72 had not come into force. S. 72 of Act 104 of 1976 is the provision which lays down that all proceedings under O. 21, R. 58,

shall be tried as a suit. In view of the specific provision, the only conclusion that can be arrived at is that in so far as the proceedings under O. 21,

R. 58 in respect of attachment effected immediately before the commencement of the Act 104 of 1976, are concerned it is the old procedure that

is applicable and not the new procedure as enacted in the Amending Act 104 of 1976. Hence, this appeal is not maintainable since the said order

can be challenged only by means of a suit. In view of the above said specific provision, the contention of the respondents that the appeal is not

maintainable will have to be accepted. In view of the conclusion on the question of law, no discussion on merits is necessary. Hence, this appeal is

dismissed and there will be no order as to costs.