Radha Mandhiri vs Suguna, Gajendiran and K. Anandan

M. Thanikachalam, J.—By the consent of the parties, the main revision itself is taken up for final hearing.

The 3rd party claimant in E.A. No. 40/2002 in E.P. No. 12/1997 in O.S. No. 135/86 on the file of the District Munsif, Gudiyatham is the

revision petitioner.

The first respondent herein as plaintiff filed the suit for maintenance against her husband, the second respondent herein in O.S. No. 135/86.

After crossing all the hurdles, it seems, she had obtained a decree for maintenance. In order to have security for the maintenance, the property

which is the subject matter of the Execution Petition was attached on 29.1.1997.

The learned counsel for the contesting respondents submits, that when the property was brought for auction through Court, the third respondent

by name, K. Anandan had purchased the property in the court auction sale on 6.2.2002. When the auction purchaser, after obtaining the sale

certificate, attempted to take possession of the property, this petitioner had filed E.A. No. 40/2002, claiming that the property sold in court auction

belongs to him, in view of the purchase made by him on 2.2.2002. The claim application was opposed by the decree holder, as well as the auction

purchaser contending that the judgment debtor viz., the second respondent herein, in collusion with the petitioner, created a bogus sale deed, in

order to defeat the right of the decree holder for maintenance and that the claim petition filed after the court sale, is not maintainable.

The learned District Munsif after hearing the parties and analysing the provisions under Order XXI Rule 58 C.P.C. came to the conclusion that

the petition filed after the property has been sold in the Court action, is not maintainable and in this view, he rejected the claim application, thereby

giving cause of auction for the petitioner, to come to this Court, as revision petitioner.

The learned counsel for the petitioner submits that the lower Court has grossly erred in not entertaining the application, in order to agitate his

right as contemplated under law and the rejection of the petition, without further investigation, is liable to be set aside, since the same is against the

provisions of Order XXI Rule 58 C.P.C.

The learned counsel for the contesting respondents submit that the claim petition filed by the third party claimant, after the court sale, cannot be

entertained and only in this view, rightly also, the lower Court has rejected the application, which is in accordance with law and if at all, the

petitioner has any remedy, he has to work it out, as contemplated under Order XXI Rule 58(5) of C.P.C.

The claim petition was filed only under Order XXI Rule 58 C.P.C. It is an admitted position, that the property was attached on 29.1.1997 and

the same was sold in the Court auction on 6.2.2002, while the attachment was in currency. It is not the case of the petitioner, that the attachment

though effected on 29.1.1997, the same has been raised elsewhere. In this view, it could be safely concluded, that after proper and valid

attachment, in the regular execution proceedings, the property was sold, which has been purchased by the third respondent, Mr. K. Anandan on

6.2.2002. Only thereafter, admittedly on 22.2.2002, this claim petition was filed. Therefore, we have to see, as per the provisions of the Act, what

is the effect of the claim petition.

Section 64 of the CPC mandates:

(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the

judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the

attachment.

(2). Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of

any contract for such transfer or delivery entered into and registered before the attachment

Thus it is seen any private alienation of property, after attachment, shall be void as against all claims enforceable under the attachment. It is an

admitted fact that this property was attached on 29/1/1997. Though an attempt was made to say that it is an illegal attachment, the procedure

followed at the time of attachment is not questioned, and the illegality is imparted on the ground, probably, the property does not belong to the

judgment debtor. If the property belonged to the judgment debtor, then the attachment should be valid, and the consequential proceedings also

should be correct one. Only during the subsistence of the attachment, admittedly on 2.2.2002, the claimant appears to have purchased the

property. Therefore, this private alienation should be held as void, prima facie. But according to the learned counsel for the petitioner/claimant, the

property does not belong to the judgment debtor or something like. If it is so, it is for the purchaser/third party, to work out his remedy by filing

appropriate suit and as rightly contended by the learned counsel for the contesting respondents, the claim petition in this case is not maintainable.

Order XXI Rule 58 (2) & (3) C.P.C. says

(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.

Therefore, as rightly contended by the learned counsel for the petitioner, if the claim petition is maintainable, all questions including title, other

interest, possession, etc. have to be decided only under the claim petition and it is unnecessary for the owner of the property to file a regular suit

for the establishment of the title. The above sub clauses (2) & (3) must be subject to clause (1) of Order XXI

Order XXI Rule 58(1) reads

.....

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) whether the Court considers that the claim or objection was designedly or unnecessarily delayed."" Thereby showing the claim petition filed after

the property was sold, not entertainable.

Only under this proviso, the lower Court has rejected the claim, which appears to be correct, as submitted by the learned counsel for the

contesting respondents. In this case, as aforementioned, only after the court sale on 6.2.2002, the claim petition was filed on 22.2.2002.

Therefore, the claim petition, squarely comes within the proviso ''a'' which says, no such claim or objection shall be entertained, if the property had

already been sold. In this case, admittedly, property had been sold on 6.2.2002. In this view, it should be held, that the claim petition filed

thereafter, is not maintainable. The learned counsel for the petitioner submits, that the sale referred in proviso ''a'' should be construed, as a

complete one, only after the confirmation of the sale and in this case as such, no confirmation of sale had been taken place, and therefore, it cannot

be said that the property was sold and in this view, according to the learned counsel for the petitioner, the petition is maintainable. The Rule is very

clear, in its term since it says the claim petition is not maintainable, if the attached property has already been sold. It does not say that the sale

should wait for confirmation or after the confirmation of sale alone, the claim petition is not maintainable.

The entire reading of Order XXI Rule 58 C.P.C., in addition to other provisions in Order XXI, in my considered opinion, make it clear that

the intention of the legislature is, to prevent this kind of application, even after the mere sale, in court auction and it need not necessarily be after the

confirmation of the sale. Proviso (b) says certain kind of claim petition can be rejected if the court considers that the claim or objection was

designedly or unnecessarily delayed. If we read sub clause (b) with (a), it could be safely concluded, that this provision is introduced only to

prevent the belated claim petitions, which aim to drag on the case. Here also, it is the case of the contesting respondents, that the judgment debtor

colluded with the petitioner, who appears to be the brother and created a sale deed, with an object of delaying the proceedings, and therefore

even I could say that the claim petition could be rejected under proviso ''b'' also. By the rejection of this kind of claim petition, if the further remedy

is barred, then we have to think twice before rejecting the application. By the rejection of the claim application, after the sale, the claimant is not

going to be affected, in any way, since there is a provision in order XXI Rule 58 itself, to establish the claim separately.

Order XXI Rule 58 (5) reads :

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.

Thus, it is seen, the rejection of the claim petition under the proviso to Sub Rule (1) will not be a bar and the claimant may institute a suit, to

establish the right and the property in dispute will be subject to result of such suit, if any and only subject to that proceedings, any order refusing to

entertain the claim or objection shall be conclusive. Therefore, the third party claimant''s right is not in any way barred, or affected and if he has any

right in the property, the same is not going to be prejudiced in any way. Viewing the case from all these angles, the irresistible conclusion that could

be drawn by the Court is, when the claim petition is filed after the property attached, has been sold, the same is not maintainable and that could be

rejected, as did by the trial Court.

For the foregoing reasons, I am unable to find any irregularity or any error in the decision rendered by the lower Court, in rejecting the claim

application. If the revision petitioner is advised, and if he has got a good case, regarding the title, it is always open to him to invoke Order XXI

Rule 58 (5) C.P.C. and as such, the present claim petition is not at all maintainable. I find no merit in the revision.

In the result, the revision petition is dismissed. No costs. C.M.P. No. 2942 of 2003 is closed.