Shrichand Heeralal Vaishya vs Santosh Kumar Devi Prasad

Dixit, J.—This is an application to revise an order of the Civil Judge Second Class Kolares holding that an objection preferred by the non-applicant ''Santosh Kumar'' under Order 21, Rule 58 after the execution sale can be inquired into. The sale took place on 26-11-1951. The non-applicant filed this objection on 6-12-1951. The sale was confirmed on 19-7-1952.

The short point for consideration in this revision petition is whether the lower Court has jurisdiction to entertain a claim under Order 21, Rule 58 after the execution sale has taken place. Mr. Shivdayal learned Counsel for the applicant relying on the authority of the decisions in Sasthi Charan Biswas Banik and Others Vs. Gopal Chandra Saha and Others, ; and Ningauda Girimallappa Patil Vs. Nabisaheb Abalal Patil, contended that it was incompetent to an executing Court to entertain an application under Order 21, Rule 58 after the sale has actually taken place. He argued that on the sale of the property, it was ipso facto released from attachment and, therefore any investigation after the sale into the claim, of the third party objecting to the attachment and sale was meaningless. In reply Mr. Motilal Gupta commanded to me for acceptance the view of the Madras and Nagpur High Courts that an attachment subsists till the confirmation of the sale and that, therefore, the consideration or investigation of a claim under Order 21, Rule 58 is not barred after the sale. Mr. Gupta referred me to the decisions reported in Chitturu Jagannadham Vs. Bura Pydayya and Others, ; Ram-chandra v. Kayam Hussain AIR 1938 Nag 475 (D).

On a consideration of these decisions, I am inclined to accede to the contention put forward on behalf of the applicant that an executing Court has no jurisdiction to entertain a claim under Order 21, Rule 58 after the execution sale has taken place. To my mind the question has been so exhaustively dealt with in Sasthi Charan Biswas Banik and Others Vs. Gopal Chandra Saha and Others, and Ningauda Girimallappa Patil Vs. Nabisaheb Abalal Patil, that I feel there is hardly anything that I can usefully add to the reasoning given in those decisions to support the conclusion that such a claim cannot be entertained after the sale. In the Bombay case, the Madras and the Nagpur decisions have been discussed and it has been pointed out that the decision of the Madras High Court in Chitturu Jagannadham Vs. Bura Pydayya and Others, which formed the basis of the decision in- AIR 1938 Nag 475 (D) is contrary to the observations of the Madras High Court in a later case namely, The Cannanore Bank, Limited Vs. Pattarkandy Arayanveettil Madhavi and Others, In that case it was observed that the dismissal of an objection under Order 21, Rule 58 presented after the Court had sold the attached property on the ground that the Court had no jurisdiction to entertain it can scarcely be regarded as an adverse order which was required to be set aside under Order 21, Rule 63. I would only add that wh(sic) a party objects to an attachment under Order 21, Rule 58, the objection is in effect that the attached property being his own, is not liable to be sold. It follows, therefore, that an investigation of a claim under Order 21, Rule 58 must precede the sale of the property and not follow it. If the legislature intended to permit after sale the investigation of a third party to the sale of the property attached, then Order 21, Rule 58 would not have been placed before the provisions regarding sale; one would have then found appropriate provisions for setting aside a sale on objections of a third party inserted in the CPC after the provisions regarding sale.

Learned Counsel for the non-applicant laid some stress on the fact that Order 21, Rule 58 empowered the Court to refuse to investigate a claim or objection if it was designedly or unnecessarily delayed, and said that this showed that an objection made after sale could be entertained. There is no force in this contention. The fact that the Court is empowered to refuse to investigate a claim or objection on the ground of delay and that the Court has also been given the power to postpone the sale is no way inconsistent with the conclusion that the investigation could not be made after the sale. The proviso in Order 21, Rule 58(1) and Sub-rule (2) only mean that the Court can decline to investigate the claim if it is made just before the sale and that it can also postpone the sale, if the claim cannot be disposed of before the sale is actually held.

In this case it is noteworthy that the sale has now been confirmed and it cannot now be argued even on the basis of the Madras and Nagpur decisions, that the attachment subsists. That being so, the executing Court has clearly no jurisdiction to investigate and determine the non-applicant''s objection under Order 21, Rule 58. Learned Counsel for the non-applicant was unable to show any authority to support the proposition that an objection under Order 21, Rule 58 can be dealt with even after the confirmation of the sale.

For the above reasons the order dated 25-8-1952 of the learned Civil Judge Second Class Kolaras is set aside and the objection of the non-applicant under Order 21, Rule 58 is dismissed. Having regard to the question involved in this petition, I make no order as to costs of this petition.