Lekhraj vs Chintamani and Others

Satish Chandra, C.J.—In an execution of a decree certain properties were attached and sold. In due course the sale was confirmed. Thereafter an objection under Order 21, Rule 58, CPC was filed. It was entertained. Objector''s evidence was recorded. A date was fixed for the evidence of the decree holder. At this stage the decree holder applied for the dismissal of the objections on the ground that Order 21, Rule 58, CPC as amended by the Central Act No. 104 of 1976 made the objections unentertainable, because, inter alia, they were filed after the sale had been confirmed. The execution court upheld this objection and dismissed the objection under Order 21, Rule 58, Code of Civil Procedure. Aggrieved, the objectors have filed the present revision.

Order 21, Rule 58, as amended has a proviso saying-

Provided 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.

Prima facie, therefore, Rule 58 was not applicable because, admittedly, the sale had taken place and the same had already been confirmed before the objections were preferred. Rule 58 of Order 21, CPC was amended by Section 72 of the amending Act 104 of 1976. Clause (q) of Section 97, Sub-section (2) of the amending Act provides-

(q) the provisions of Rules 31, 32, 48A, 57 to 59, 90 and 97 to 103 of Order XXI of the First Schedule as amended or, as the case may be, be substituted or inserted by Section 72 of this Act, shall not apply to or affect;

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

(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or

(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said Section 72 had not come into force;

In my opinion, none of these clauses are applicable to a proceeding initiated by the institution of objection under Rule 58. Rule 58 applies to an objection to an attachment. It is not a proceeding to set aside the sale as such. Such a proceeding is contemplated by Rule 89, 90 and 91. Attachment of the property came to an end with the confirmation of the sale which took place prior to the filing of the present objections. Clause (i) hence cannot apply. Since none of the sub-clauses of Clause (q) apply, it is evident that Rule 58 as amended will be applicable to the pending proceedings. The finding is that the objections were preferred after the property had been sold and the sale had been confirmed. They were, hence, not entertainable. The objections were, therefore, rightly dismissed.

In the result, the revision has no substance and is accordingly dismissed.