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B.M. Aishabi Vs. A. Yakub and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.A. No. 253 of 1983
Judge
Reported inAIR1984Ker237
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 58(1), 58(4) and 58(5); Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantB.M. Aishabi
RespondentA. Yakub and ors.
Appellant Advocate P.K. Muhammed and; A.B. Jaleel, Advs.
Respondent Advocate C.P.D. Nayar,; D. Krishna Prasad and; U.P. Kunikullaya
DispositionAppeal dismissed
Cases ReferredLala Ram v. Hari Ram
Excerpt:
.....58 objecting to attachment - whether appeal maintainable or not - rule 58 (1) lays down that no claim or objection shall be entertained where court considers that claim or objection was designedly or unnecessarily delayed - rule 58 (4) describes effect of order 'where any claim or objection has been adjudicated upon' by providing that it shall have same effect and be appealable as decree - rule 58 (5) provides for other situation where court refuses to entertain claim or objection under rule 58 (1) - word 'entertain' was interpreted by apex court decision - it means 'adjudicate upon' or 'proceeding to consider on merits' - petition dismissed. - - sub-rule (3) lays down the consequential orders -like allowing or disallowing the claim etc. what the sub-section prescribed was..........is made to the attachment of, any property the court should proceed to adjudicate upon the claim or objection in accordance with the provisions of the rule. it is followed by a proviso in these terms :'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.' sub-rule (2) provides that all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under the rule and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with.....
Judgment:

Balagangadharan Nair, J.

1. In execution of a decree for money the first respondent-decree-holder attached a property on 20-10-1982. The appellant who is a stranger preferred a claim under Order 21, Rule 58, C.P.C., objecting to the attachment. In the claim it was stated that she knew about the attachment only on 28-10-1983 when she came to the property covered by the attachment. The learned Judge noted that the attachment was made in the presence of the manager of the lodge (which was the subject of attachment) and other persons and it was not possible to believe that she did not get information about it from the manager. Holding that the claim was designedly and unnecessarily delayed the learned Judge dismissed it. The petitioner has brought this appeal challenging the order.

2. Counsel for the 3rd respondent raised a preliminary objection contending ' that as the claim was dismissed for the reasons mentioned in the order without investigation the appeal was incompetent under Rule 58 of Order 21, whatever other remedy might be open to the appellant. This necessitates a consideration of the relevant provisions of Order 21, Rule 58 as amended by Act 104 of 1976. Sub-rule (1) provides that when a claim is preferred to or objection is made to the attachment of, any property the court should proceed to adjudicate upon the claim or objection in accordance with the provisions of the rule. It is followed by a proviso in these terms :

'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.'

Sub-rule (2) provides that all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under the rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. Sub-rule (3) lays down the consequential orders -- like allowing or disallowing the claim etc. -- to be passed by the Court upon the determination of the questions referred to in Sub-rule (2). Sub-rules (4) and (5) read thus :

'(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the proviso to Sub-rule (1), refuses to entertain it, the party against whom such order is made, may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.'

3. Clause (b) of the proviso to Sub-rule (1) lays down that no claim or objection shall be entertained where the Court considers dial the claim or objection was designedly or unnecessarily delayed. Sub-rule (2) confers plenary powers upon the Court to determine all the questions relating to the claim or objection. Sub-rule (4) describes the effect of the order 'where any claim or objection has been adjudicated upon' by providing that if shall have the same effect and he appealable as a decree. Sub-rule (5) provides for the other situation, where the Court refuses to entertain the claim or objection under the proviso to Sub-rule (1). Under the terms of the proviso to Sub-rule (1) no claim or objection shall be entertained if it is designedly or unnecessarily delayed, and where it is refused to he entertained the party against whom such an order is made can institute a suit to establish his right under Sub-rule (5). Where, on the other hand, there has been an adjudication, Sub-rule (4) enacts that the resultant order shall be subject to appeal as if it were a decree. The court below has reused to entertain the appellant's claim or objection under Clause (b) of the proviso thus attracting the consequence under Sub-rule (5), That being so, the remedy open to the appellant is the remedy prescribed by Sub-rule (5), to institute a suit to establish the right which she claims to the property under attachment. The remedy of appeal under Sub-rule (4) is recovered only for orders adjudicating upon claims or objections and not to orders of refusal to entertain them under the proviso to Sub-rule (1). The position which is clear on the terms of the rule is thus stated under Note 50 to Order 21. Rule 58. in the A.I.R. Commentaries to the Civil Procedure Code, 9th Edition :

'The present amended Rule deals with two categories of orders on claim petitions.

A. Where the Court entertains the claim or objection and determines the questions under Sub-rule (2).

B. Where the Court refuses to entertain the claim or objection under the Proviso to Sub-rule (1).

The determination of the questions in category A would now have the force of a decree and the remedy of the party wishing to challenge the order is only by way of appeal. But an order in a case under category B is subject to the result of a suit, challenging the order.'

4. This analysis fully bears out our construction of the effect of Rule 58.

5. Counsel for the appellant suggested that the Court below has really entertained the claim when it was received and registered as E.A. No. 268 of 1983 and therefore the order was amenable to appeal under Sub-rule (4). We find it impossible to accept the contention, for one thing, what invests the order on a claim or objection with the force of a decree and render at appealable under Sub-rule (4) is the antecedent adjudication. There has been admittedly no adjudication at all in the present case. Further mere reception of the claim or objection in Court or its registration at an E.A. will not constitute entertainment in the context of the proviso. In Hindustani Commercial Bank Ltd. v. Punnu Sahn. AIR 1970 SC 1384, the Supreme Court interpreted the word 'entertain' as meaning 'adjudicate upon' or 'proceeding to consider on merits'. In that case the appellant contended that the expression 'entertain' in the proviso to Order 21. Rule 90, added by the Allahabad High Court referred to the initiation of the proceedings and not to the stage when the Court lakes up the application for consideration. The Supreme Court rejected this contention relying upon an earlier decision in Lakshmiratan Engineering Works Ltd. v. Asstt. Commr. Sales Tax, AIR 1968 SC 488. In the latter case the Supreme Court had to consider the expression 'entertained' in the proviso to Section 9 of the U. P. Sales Tax Act which laid down that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such instalments thereof as may have become payable : The Supreme Court agreed with counsel that the word 'entertain' meant either 'to deal with or admit to consideration' and held that the word in the proviso meant the first occasion on which the Court takes up the mailer for consideration.

6. Lala Ram v. Hari Ram, AIR 1970 SC 1093. construed the word 'entertain' in Section 417(4) of the Criminal P. C., 1908 (corresponding to Section 378(5) of the 1973 Code). That decision has no application for the sub-section merely provided dial no application for the grant of special leave to appeal shall be entertained by the High Court after the expiry of sixty days from the date of the order of acquidal. What the sub-section prescribed was something like a period of limitation where the crucial point is the date of presenting the application and not the date of hearing the application for leave to appeal. The decision cannot assist the appellant in any way. What applies here is the meaning given to the word 'entertain' in AIR 1970 SC 1384.

We uphold the respondent objection and dismiss the appeal as incompetent. No costs.


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