Andhra HC (Pre-Telangana)
Singirkonda Surekha vs G.V. Sharma And Ors. on 8 January, 2003
Equivalent citations: 2003(1)ALD803
ORDER C.Y. Somayajulu, J.
1. First respondent obtained a decree against respondents 2 to 5 for recovery of money and filed E.P.No. 162 of 2000 to execute that decree and got attached the house property specified in the scheduled appended to the E.P., which was sold in Court auction on 22.04.2002 and that sale was confirmed on 24.06.2002. On 23.07.2002, i.e., about one month after the confirmation of sale, revision petitioner filed E.A.No. 212 of 2002 under Order 21 Rule 58 C.P.C. to raise the attachment over the property which was sold in Court auction and the same was dismissed as belated under Proviso (a) to Order 21 Rule 58(1) C.P.C. Hence this revision by the petitioner in E.A.No. 212 of 2002.
2. The contention of the learned counsel for the revision petitioner is that in view of Magunta Mining Co. v. M. Kondarami Reddy, , the order under revision cannot be sustained. He contended that the Executing Court should have permitted the parties to adduce evidence and disposed the petition on merits on the basis of evidence adduced. The contention of the learned counsel for the first respondent is that M/s. Magunta Mines Co. (supra) has no application to the facts of this case because in that case the petition was filed before the sale was held.
3. Proviso to Rule 58 (1) of Order 21 C.P.C. 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) where the Court considers that the claim or objection was designedly or unnecessarily delayed."
As per Rule 58(5) of Order 21 C.P.C., when a claim or objection is refused to be entertained under Proviso to Rule 58(1), the petitioner can institute a suit to establish his right in the property attached, while Rule 58(2) of Order 21 C.P.C., lays down that all questions, including the right, title or interest in the property arising between the parties, have to be decided by the Court dealing with the claim but not by way of a separate suit. Rule 58(4) of Order 21 C.P.C., lays down that order passed on such claim is appealable as a decree. The position, therefore, is, if claim petition filed under Rule 58 of Order 21 C.P.C., is dismissed as per the proviso to Rule 58(1), the claimant has a right to file a suit to establish his right in the attached property, and if the claim petition is entertained and disposed of on merits that order can be questioned only in an appeal but not by way of a separate suit. The fact that a revision, but not an appeal, is filed by the claim petitioner against the order of dismissal of his petition clearly shows that the revision petitioner is also aware that his petition was dismissed under the proviso to Rule 58(1) of Order 21 C.P.C.
4. In this case, since claim petition was filed after the sale was held and confirmed, the Executing Court, by invoking the Proviso to Rule 58 (1) of Order 21 C.P.C., dismissed the same as not maintainable. M/s. Magunta Mines Co. (supra), relied on by the learned counsel for the revision petitioner, has no application to the facts of this case. In that case claim petition, in respect of the properties attached in March 1980, was filed on 25.04.1980. After enquiry that petition was dismissed on merits. Appeal against that order of dismissal was filed in this Court on 18.05.1980 and interim stay was granted on 22.08.1980. But, even before the order of stay was communicated to it, the Executing Court held the auction. Therefore, a contention was raised during the course of hearing of the appeal that the appeal is liable to be dismissed inasmuch as the sale was already held. Therefore, one of the points for consideration framed was whether the appeal can be proceeded with even though the property was sold during the pendency of the appeal. Holding that the appeal can be heard on merits, the Bench held in para-15 of its Judgment as under:
"Whenever a claim is preferred under Order 21 Rule 58 C.P.C. against attachment of immovable properties, the fact that the properties are sold or the sale confirmed will not deprive the Court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial Court or the appellate Court (under the amended Code) and in the event of the claim being allowed, the sale and the confirmation of sale shall to that extent be treated as a nullity and of no effect, as the judgment-debtor had no title which could pay to the Court auction-purchaser."
5. Therefore, the ratio in that decision is that if sale was held during the pendency of the "appeal" against the order of dismissal of a petition filed under Rule 58 of Order 21 C.P.C., the appeal does not become infructuous. The Bench was not deciding the question as to whether a claim petition can be filed after the sale was held.
So, the said decision has no application to the facts of this case. That apart, if the contention of the learned counsel for the revision petitioner were to be accepted, it would render the Proviso to Rule 58(1) of Order 21 C.P.C. redundant or otiose. Hence, I find no merits in this revision and the same is accordingly dismissed. No costs.