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Shah Mapatlal Mulchand, a Firm Vs. Patel Jivabhai Lallubhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR14
AppellantShah Mapatlal Mulchand, a Firm
RespondentPatel Jivabhai Lallubhai and anr.
Cases ReferredKalicharan Ghose v. Sarojini Debi A.I.R.
Excerpt:
- - (1) where any claim is preferred to or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment the court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other objects as if he was a party to the suit......under order 21 rule 58 was decided. it is therefore contended that under order 21 rule 58 c.p. code the application should not have been decided after the sale had been held although the sale had not been confirmed on the date of the decision of the claim petition. the learned counsel for the petitioner relied on ningauda v. girimallapa 44 bom., law reporter 543 which had decided the question whether a suit could be filed under order 21 rule 63 c.p. code after an order had been passed on an application under order 21 rule 58 c.p. code filed after the sale had been held and when the order proceeded on the ground that the application was not tenable because it had been made after the attachment had come to an end. in this decision no doubt there is a discussion as to the scope of order.....
Judgment:

V.B. Raju, J.

1. The only print urged in this civil revision petition is that the Civil Judge Junior Division Chanasma committed a material irregularity in the exercise of his jurisdiction in deciding a claim petition under Order 21 Rule 58 Civil Pro. Code objecting to the attachment of certain property in execution of a decree obtained by the petitioner after the sale had been held although the claim petition had been made before the sale took place. The claim petition was filed on 3-9-58. On the same date the learned Judge ordered a notice to issue to the opponent to show cause why the property attached should not be sold. Subsequently on 11 the claim petition under Order 21 Rule 58 was decided. It is therefore contended that under Order 21 Rule 58 C.P. Code the application should not have been decided after the sale had been held although the sale had not been confirmed on the date of the decision of the claim petition. The Learned Counsel for the petitioner relied on Ningauda v. Girimallapa 44 Bom., Law Reporter 543 which had decided the question whether a suit could be filed under Order 21 Rule 63 C.P. Code after an order had been passed on an application under Order 21 Rule 58 C.P. Code filed after the sale had been held and when the order proceeded on the ground that the application was not tenable because it had been made after the attachment had come to an end. In this decision no doubt there is a discussion as to the scope of Order 21 Rule 58 C.P. Code but the point for decision related to the scope of Order 21 Rule 63 C.P. Code. No doubt the discussion in this judgment is very useful. The learned Judge referred to Deoki Singh v. Sri Thakur Raghvindra Bhagwan A.I.R. 1939 Patna 430 where it was held that where an application under Order 21 Rule 58 was filed but was not heard till the sale had been held the Court did not cease to have jurisdiction to hear the application merely because the sale had already taken place. The learned Judge also observed that the reasoning in Jagannadham v. Pydayya I.L.R. 55 Madras 251 that the attachment subsists even after the sale takes place in view of the provisions in Order 21 Rule 55 C.P. Code is not convincing. In I.L.P. 55 Madras 251 it was held that where a claim under Order 21 Rule 58 is put in after the property has been knocked down in Court auction the consideration or investigation of such a claim is not infructuous. In this case the Calcutta decision in Kalicharan Ghose v. Sarojini Debi A.I.R. 1926 Calcutta 4682 was dissented from. It is therefore clear that two conflicting views have been expressed on this question whether an application under Order 21 Rule 58 C.P. Code can be decided after sale had been held although the sale had not been confirmed. Order 21 Rule 54(1) reads as follows:

Where the property is immovable the attachment shall be made by an order prohibiting the Judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge.

2. It is therefore an order mainly on the judgment-debtor. Order 21 Rule 58 C.R. Code reads as under:

(1) Where any claim is preferred to or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector and in all other objects as if he was a party to the suit.

Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) Where the property to which the claim or objection applies has been advertised for sale the Court ordering the sale may postpone it pending the investigation of the claim or objection.

But Sub-rule (2) of Order 21 Rule 58 does not say that the Court shall postpone the sale. The sale may be postponed. It is therefore clear from Sub-rule (2) that even if the sale is not postponed the Court can investigate the claim or objection. In my opinion this is a complete answer to the view that a claim petition under Order 21 Rule 58 C.P. Code filed before the sale cannot be adjudicated upon or investigated or decided upon after the property had been sold. No doubt if the claim petition had been made after sale had been confirmed that would have been a different question but in the instant case the sale had not been confirmed.

3. For these reasons I hold that the learned Judge did not commit any irregularity in the exercise of his jurisdiction. I therefore dismiss the application. In view-of the fact that the claim petition was made on the date of the sale there will be no order as to costs.


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