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Amruthrao Vs. Viswanath - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1964 of 1985
Judge
Reported inILR1985KAR3272
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 59
AppellantAmruthrao
RespondentViswanath
Advocates:K.S. Savanur, Adv.
DispositionPetition dismissed
Excerpt:
.....made under order 21 rule 58 was rejected, application filed under order 21 rule 59 seeking stay of sale of attached property was dismissed as not maintainable. in revision : ;from a reading of rule 59 of order 21, it becomes clear that the executing court is enabled thereunder to grant stay of sale of the property attached; even though it had been advertised for sale, or if such sale is allowed to take place, to withhold its confirmation, pending adjudication upon the claim on the objections made before it respecting the property so attached. from this it follows that the executing court is, under rule 59, enabled to grant stay of sale of property attached or if such sale is allowed to take place, to withhold its confirmation only when the objection respecting the property..........here filed an application under rule 59 of order 21 of the code in the same court, seeking stay of sale of the aforesaid land, which had been attached. that application having been treated as execution case no. 50/82, the same has been dismissed as not maintai-nable.3. rule 59 of order 21 of the code reads :'59. stay of sale. - where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the court may-a) if the property is moveable, make an order postponing the sale pending the adjudication of the claim or objection, orb) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication,the property may be sold but.....
Judgment:
ORDER

Venkatachala, J.

1. Scope and ambit of Rule 59 of Order 21 of the Code of Civil Procedure, 1908 ('the Code'), arise for determination in this Revision Petition.

2. The petitioners here are minor sons of respondent-2 here. Respondent-1 here obtained adecree against respon-dent-2 here on 26-5-1982 in O.S. No. 7/82, on the file of the Court of Civil Judge at Bidar, for recovery of certain money. In executing that money decree in Execution Petition Case No. 50/82, on the file of the Court of Munsiff at Basava Kalyan, he got attached the land comprised in Survey No. 56 situated at Talbhog Village claiming that it belonged to respondent-2 here. The petitioners here, who raised an objection to the said attachment of the land under Rule 58 of Order 21 of the Code, sought for release of the same. That objection, which was registered in Miscellaneous Case No. 25/82, in the said Munsiff's Court, was adjudicated upon by it, but disallowed by its order dated 18-11-1983. Admittedly, that order, though could have been appealed against by the petitioners as a decree, was not so appealed against. However, the petitioners here filed an application under Rule 59 of Order 21 of the Code in the same Court, seeking stay of sale of the aforesaid land, which had been attached. That application having been treated as Execution Case No. 50/82, the same has been dismissed as not maintai-nable.

3. Rule 59 of Order 21 of the Code reads :

'59. Stay of sale. - Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may-

a) if the property is moveable, make an order postponing the sale pending the adjudication of the claim or objection, or

b) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication,the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the Court thinks fit.'

14. From a reading of the above rule, it becomes clear that the executing Court is enabled thereunder to grant stay of sale of the property attached, even though it had been advertised for sale, or if such sale is allowed to take place, to withhold its confirmation, pending adjudication upon the claim of the objection made before it respecting the property so attached. From this it follows that the executing Court is, under Rule 59, enabled to grant stay of sale of property attached or if such sale is allowed to take place, to withhold its confirmation only when the objection respecting the property attached is pending adjudication before it and not otherwise.

5. In the instant case, when admittedly the executing Court had dismissed the objection of the petitioners here, raised before it regarding the property attached, well before the application for stay was made by them, there was no scope for that Court to grant stay of sale of the property attached. Hence, the executing Court has rightly rejected the application for stay made before it by the petitioners here; by its order now under revision.

6. In the result, I dismiss this Revision Petition without admitting it.


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