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Chhoga Lal Vs. Khet Mal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 68 of 1962
Judge
Reported inAIR1963Raj144
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 58(1)
AppellantChhoga Lal
RespondentKhet Mal and anr.
Appellant Advocate Mangimal, Adv.
Respondent Advocate Shrikishan Mal, Adv.
DispositionPetition dismissed
Cases ReferredRagunath Das v. Sunder Das Khetri
Excerpt:
- .....clause (1) of order 21 rule 58 makes it incumbent upon the court to proceed to investigate a claim or objection which is preferred to the attachment of the property which is attached in execution of a decree on the ground that such property is not liable to such attachment, except where the court considers that the claim or objection was designedly or unnecessarily delayed, in which case again the proviso contained in that clause makes it equally incumbent upon the court to decline to investigate the same. clause (2) gives power to the court to postpone the sale pending investigation of a claim or objection. one reason given in favour of the first view is that the interence to be drawn from clause (2) is that once & sale has taken place there can be no investigation of the claim or.....
Judgment:
ORDER

Jagat Narayan, J.

1. The sole question which arises in this revision application is, whether the executing Court has jurisdiction to entertain a claim purporting to be under Order 21 Rule 58(1) C.P.C., after the execution sale has taken place, but before it is confirmed. On this question there Is a conflict of judicial opinion. The High Courts of Bombay, Calcutta, Lahore, Madhya Bharat, Patna and Rangoon have taken the view that the Court has no such Jurisdiction. The reasons for this view are contained in the followingdecisions:

Gopal Chandra Mukherji v. Notobar Kundu, 15 Ind Cas 53 (Cal); Maung Po Pe v. Maung Kwa, AIR 1928 Rang 80; Sasthi Charan v. Gopal Chandra, AIR 1937 Cal 390;

2. A contrary view was taken in the following decisions:

Jagannadham v. Pydayya, AIR 1931 Mad 782; Mukhi v.Allahbux, AIR 1933 Sind 198; Ramchandra v. Kayam Hussain,AIR 1938 Nag 475; Ramiah v. Cowdiah, AIR 1958 Mys 140. Having fully considered the above decisions and the arguments advanced by the learned counsel for the parties, I am of the opinion that the latter view is preterable.

3. Clause (1) of Order 21 Rule 58 makes it incumbent upon the Court to proceed to investigate a claim or objection which is preferred to the attachment of the property which is attached in execution of a decree on the ground that such property is not liable to such attachment, except where the Court considers that the claim or objection was designedly or unnecessarily delayed, in which case again the proviso contained in that clause makes it equally incumbent upon the Court to decline to investigate the same. Clause (2) gives power to the Court to postpone the sale pending investigation of a claim or objection. One reason given in favour of the first view is that the interence to be drawn from Clause (2) is that once & sale has taken place there can be no investigation of the claim or objection. This is not tenable. The expression used in Clause (2) is 'may' as opposed to the expression 'snail' appearing in Clause (1). Prima facie therefore Clause (2) is no absolute bar to the Court proceeding with the sale of the attached property notwithstanding the pendency or an application for raising attachment.

4. Another reason advanced in favour of the first view is that Rule 60, which follows Rule 58, says that attachment will be raised in case the claim or objection prevails and it does not provide for the setting aside of the sale. Further that where sale has actually been held, it cannot be set aside without giving notice to the auction purchaser who is affected thereby and who becomes entitled to re-payment of his purchase money. This in my opinion does not present an insurmountable difficulty. Under Section 65 C. P. C. the property vests in the auction purchaser from the date of the sale after confirmation has taken place. It follows from it that before the sale is confirmed the property does not vest in the auction - purchaser. If the property is released from attachment under Rule 60, the unconfirmed sale will automatically lapse and the Court can pass an order for the refund of the purchase money to the auction purchaser. Further the auction-purchaser can be impleaded as a party to the proceedings under Order 21 Rule 58, whenever a claim or objection is filed after the sale has taken place, so that he may adequately safeguard his inchoate interest in the property.

5. The main ground, on which the first view is based is the assumption that attachment ceases when sale takes place. There seems to be no warrant for this assumption. Express provision is made in Rules 55 and 57 of Order 21 for the removal and determination of an attachment. There is no provision providing that mere sale of an attached property itself removes or determines the attachment. An execution sale is liable to reversal in certain circumstances provided for in Rules 72(3), 89 and 90 of Order 21. The Code of Civil Procedure does not provide for a fresh attachment to be made in the event of the sale being set aside under these rules and no fresh attachment is ever made in such cases in actual practice. It follows, therefore, that the attachment remains in force, despite the fact that the sale has been set aside. It is reasonable to Infer that attachment continues in spite of the sale until the sale is confirmed. The object of attachment is to prevent or avoid private alienation by the judgment-debtor as was observed by their Lordships of the Privy Council in Ragunath Das v. Sunder Das Khetri, AIR 1914 PC 129. If that is the object, the attachment must subsist so long as the titleremains With the judgment-debtor to tempt him to sell the property privately.

6. It seems to me that so long as the property does not vest in the auction-purchaser -- and as I have shown above this does not take place till the sale is confirmedeven though the property then vests retrospectively under Section 65 C.P.C. -- the executing Court has jurisdiction to make an investigation under Order 21 Rule 58(1). That Court may, however, dismiss the claim or objection summarily on the ground that it is filed belatedly.

7. For reasons given above I hold that the executing Court has jurisdiction to entertain the claim preterred by Khetmal, respondent No. 1, under Order 21 Rule 58 C. P. C., despite the fact that the sale had taken place. The revision application is accordingly dismissed.

8. The executing Court is directed to proceed with the investigation after impleading the auction purchaser as a party to the claim proceedings. In the circumstances of the case I direct that parties snail bear their owncosts of this revision application.


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