Vivek J. vs Vanitha K. Bhat and Others

Aravind Kumar, J.—Applicant in Execution No. 606/2002 is assailing the order dated 03.10.2015 (Annexure-A) whereunder application filed under Order XXI Rule 58 CPC has been dismissed.

Brief facts leading to filing of this petition are as under:--

"1st respondent herein filed a suit against 2nd respondent in O.S. No. 104/1996 for recovery of money in a sum of Rs. 7,00,500/- and after contest, suit came to be decreed by judgment and decree dated 24.09.2002. In order to enjoy the fruits of the decree, 1st respondent filed Execution Petition against the judgment debtor in Ex. No. 606/2002, which was undisputedly presented by the decree holder viz., husband of 1st respondent herein. On his demise, his wife has proceeded with the Execution Petition and has sought for payment of the amount. Executing Court on 19.12.2004 and on 10.07.2015 passed an order of attachment against the judgment debtor. Report of the Special Ameen appointed by the Executing Court would indicate that warrant has been duly executed and all the movable properties are attached like car, motor bike, old television, DVD player, etc. Thereafter, applicant has filed an application under Order XXI Rule 58 contending inter alia that he is the absolute owner in possession and enjoyment of the house property and the properties attached are exclusively belonging to him and same is required for his day to day life and it was purchased by him out of his savings amount from his individual income. It is also contended that other than himself, no other person has right over said property. It was also contended that Judgment Debtor owns other properties and if the Decree Holder intends to execute the decree, he can do so in respect of the property belonging to the Judgment Debtor."

Above said application came to be resisted by Decree Holder contending that it is only ruse to protract the execution proceedings and all contentions raised in the affidavit supporting the application came to be denied. Trial Court after considering the rival contentions, by impugned order, rejected the application on the ground that applicant has not produced an iota of documents to substantiate his claim except the registration certificate of the vehicle. Executing Court also recorded a finding that husband of the Judgment Debtor by name Sri. Jayaram had also filed similar application earlier and one lady by name Smt. Sumati had also filed similar application contending that she had filed a suit in O.S. No. 663/2012 for declaration that the proceeding adopted by defendant No. 3 in the said suit that is the Decree Holder subjecting the plaint schedule property belonging to the plaintiff to the process of sale as null and void and it was noticed by the Executing Court that said Sumati had purchased the subject property from Judgment Debtor in the year 2005 i.e., after filing of the execution petition. Amongst other grounds as discussed in detail in the impugned Order, Executing Court rejected the application.

I have heard the argument of Sri. Pallava R., learned Counsel appearing for petitioner and it is as under:

"1) Objector has asserted his title to the suit property. Hence, Executing Court ought to have afforded an opportunity to tender evidence and thereafter, should have adjudicated the claim and applicant was not afforded any opportunity.

2) Application in question has not been rejected in exercise of power under Clause (a) and (b) of proviso to sub-Rule (1) of Rule 58 of Order XXI. As such, question of instituting a suit independently by the objector as indicated in sub-Rule (5) does not arise and there being no adjudication of the application by trial Court, it does not amount to decree and as such, this Court in exercise of power under Article 227 of the Constitution of India would be empowered to quash the impugned order as one without jurisdiction or on the ground that Executing Court has committed a jurisdictional error. As such, he seeks for allowing of the Writ Petition."

In support of his submission, he has relied upon the judgments in the matter of K. Venkarayappa Vs. Ellen Industries, Coimbatore and Others, and in the matter of Maya Devi Vs. Lalta Prasad, .

At the cost of repetition and as noticed hereinabove, the Decree Holder during his life time was not able to enjoy the fruits of the decree after having obtained the Judgment and Decree in O.S. No. 104/1996 on 24.09.2002 though, he filed execution petition in Ex. No. 606/2002. Unfortunately, fate has played its role, he expired and his wife has continued to prosecute the claim. Judgment Debtor has been avoiding and evading to comply with the decree passed by the Competent Court and for the past several years, Judgment Debtor has been successful in her attempts to stave off the decree being executed against her, though it is stated by the learned Counsel for the petitioner that certain amounts have been paid by her intermittently during the pendency of execution proceedings that does not satisfy the decree. Judgment Debtor is none other than mother of the applicant and applicant is also trying to stave off the decree being executed. In the affidavit filed along with the application, it is stated that his mother is living separately and her husband (i.e., applicant''s father) also has no right over the movables attached. Having said so in the affidavit, as rightly observed by Executing Court, not a piece of documentary evidence has not been placed before Executing Court by the objector to establish his ownership or right over the movable properties. Learned Counsel appearing for the petitioner has contended before this Court that such documents were produced but it could not be traced in the records of Executing Court. If it were to be so, filing of the documents would have found a place in the records of Executing Court or in the Order Sheet. The Order Sheet of execution proceedings also do not disclose as such, and it is because of this precise reason, executing court has rightly observed that objector has not produced any documents to show that he is the absolute owner of the vehicle in question. It is also observed by the Executing Court that "as a matter of fact, application is not supported with documents". I do not find any good ground to disbelieve the said finding arrived by the Executing Court on account of writ petitioner-objector having not demonstrated even before this Court with reference to entries found in the order sheet, for having produced such documents. In that view of the matter, contention with regard to production of the documents as sought to be put forth by learned Counsel appearing for petitioner cannot be accepted. Said contentions stands rejected.

Order XXI Rule 58 when read in its entirety would indicate that a Court dealing with the objection or claim over the property under attachment has two options left to it namely; either it can reject such claim or objection at the threshold as provided under proviso to sub-Rule (1) or determine such questions under sub-Rule (2) of Rule 58. If the Court declines to entertain the claim under proviso to sub-Rule (1) the remedy to such a party against whom such an order is passed is to institute a suit as provided under sub-Rule (5). On the other hand, if the dispute is adjudicated under sub-Rule (2) such an order amounts to a decree and can be challenged by a party by taking recourse to Section 96 by filing an appeal. If the claim or objection results in rejection simplicitor, the party against whom such order is made will have to take recourse by filing a suit as prescribed under sub-Rule (5) of Rule 58. However, if the claim or objection is examined with reference to pleading and proof, evidence then, necessarily it would attract sub-Rule (4) of Rule 58 and as such the aggrieved party would be entitled to invoke the appellate jurisdiction. This view is also fortified by the judgment of this Court rendered in the case of State Bank of India Vs. Rajshekhar and Others--> .

Reading of sub-Rule (3) of Rule 58 of Order XXI would indicate that the determination of questions referred to in sub-Rule (2), Executing Court shall, in accordance with such determination,--

"(1) allow the claim or objection and release the property from attachment either wholly or to such an extent as it thinks fit; or

(2) disallow the claim or objection; or

(3) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

(4) pass such Order as in the circumstances of the case it deems fit."

Adjudication referred to in sub-Rule (3) would not necessarily mean recording of evidence. If the applicant is able to demonstrate prima facie case that claim is genuine, not malafide and it is a bonafide dispute, then necessarily Executing Court has to record the evidence that may be tendered by the objector in support of his claim and then proceed to adjudicate the claim. However, if the Executing Court finds that claim made by the objector for the property attached is malafide and without any basis, then there is no need or necessity for the Executing Court to undertake the exercise of recording evidence. In the light of aforestated discussion, when facts on hand are perused, it would clearly go to show that objector in support of his claim had not produced an iota of evidence before Executing Court as clearly recorded in Paragraph 11 of its judgment. In that view of the matter, no error can be found in the order of Executing Court and to arrive at a conclusion that for all circumstances to come, Executing Court ought to have recorded evidence and then proceeded to dismiss the application. When on adjudication, as contemplated under Clause (b) of sub-Rule (3) of Rule 58 of Order XXI, objection or claim has been disallowed; the remedy available to petitioner is to file an appeal under Section 96 CPC. In that view of the matter, this Court is of the considered view that the present petition is not maintainable and as such, judgment relied on by learned Counsel appearing for petitioner would not come to his rescue. Hence the following:

"ORDER

(1) Writ Petition is dismissed.

(2) The order dated 03.10.2015 (Annexure-A) passed in Ex. No. 606/2002 by IV Additional Senior Civil Judge, Mysore stands affirmed."