Kancherla Lakshminarayana vs Mattaparthi Syamala & Ors on 14 March, 2008
It is pointed by the learned counsel from the language of the clause (a) of
proviso to Rule 58(1) that where any objections are taken to the
attachment on the ground that such property is not liable to attachment,
the court has to proceed to adjudicate upon the claim or objections in
accordance with the Rule. Learned counsel further argues that there is a
rider to this Rule in the shape of a proviso and it is suggested that such
claim or objection need not be entertained where firstly the property
attached has already been "sold". Learned counsel points out that merely
because of the auction of the suit property, it cannot be said that the said
property is sold, thereby leaving no right in or opportunity with the objector
to object to the attachment. Learned counsel invited our attention to the
judgment of the Andhra Pradesh High Court in M/s.Magunta Mining Co.
v. M. Kondaramireddy & Another [AIR (1983) A.P. 335] where the
similar situation had arisen on the basis of an application made by the
appellant under Order XXI Rule 58 CPC. The objector was none else but
the son of the Judgment-Debtor whose property was auctioned. The
objection was that since there was a prior lease in respect of the said
property and since in pursuance of that lease the objector-appellant had
been in possession of the same and, therefore, the attachment was not
valid and has to be vacated. An objection was also raised that the
properties which were attached were already sold and, therefore, the
objection to the attachment and the appeal had become infructuous. The
Court, therefore, dealt with the effect of the court sale conducted by the
lower court. It was an admitted position that before the said order of High
Court reached the sale was already completed in respect of all the items
where the Decree-holder himself purchased the properties. It is also seen
from the facts that there the sale was not confirmed. The Division Bench,
speaking through Hon'ble Jagannadha Roa, J. (as His Lordship then was)
observed in para 15: