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Sargunam Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.P. No. 8311 of 1984
Judge
Reported inAIR1986Mad301
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 58
AppellantSargunam
RespondentUnion of India and ors.
Advocates:R.S. Subramaniam, Advs.
Excerpt:
- - 3. the contentions of the learned counsel for the petitioner are clearly unsustainable......petitioner would say that the rule provides for a summary procedure and it discriminates between a party claiming title to a property in a regular suit and a claimant claiming title over a property that has been attached in execution proceedings.3. the contentions of the learned counsel for the petitioner are clearly unsustainable. as already stated, certain changes have been effected in r. 58 of o. 21, in order to provide a more effective remedy for the parties and to avoid multiplicity of proceedings and to give finality to orders passed under the rule, subject to the limitations contained in the rule, viz., the order being liable to be challenged in appeal, etc. the rule does not say anything about the enquiry being of a summary nature. it is open to a party to adduce evidence to.....
Judgment:
ORDER

1. The petitioner seeks the issue of a writ of declaration for invalidating R. 58 of O. 21 of the Civil P.C. on the ground that it is ultra vires the Constitution. A creditor of the petitioner's father had filed a suit and obtained a decree. In execution of the decree, -the creditor had attached a property over which the petitioner claimed title. The petitioner filed a claim petition to set aside the attachment. After enquiry, the second respondent, viz., the District Munsif, Periyakulam, Madurai Dist., dismissed the petition. The petitioner preferred an appeal, C.M.A. No. 6 of 1982, to the Subordinate Judge, Periyakulam but that was also dismissed on 11- 11- 1983. The petitioner has filed a civil revision petition against the order of the Subordinate Judge to this court and the said revision petition is said to be pending admission. In the meanwhile the petitioner claims to have realised that O. 21, R. 58 of the Civil P.C. is ultra vires the Constitution and has therefore come forward with this petition to seek a writ of declaration.

2. Several provisions of the Civil P.C. were amended by the Central Amendment Act No. 104 of 1976 after taking into consideration the recommendations of the Law Commission. The amendments have been effected in order to render --proceedings effective and to eliminate delays. As a consequence thereof Rr. 60 to 63 of 0. 21 were omitted by the Amendment Act. But correspondingly, the provisions of R. 58 have been amplified in order to afford effective opportunity and remedy to claimants to secure relief under that rule. After amendment, sub-rule (1) of R. 58 refers to the right of a claimant to prefer an objection against attachment of any property on the ground that it is not liable to such attachment. The sub-rule further says that when such objection is raised, the Court is bound to adjudicate upon the claim or objection in accordance with the provisions contained in that rule. Sub-rule (2) lays down that all questions, including questions relating to right, title or interest in the property attached, arising between the parties in the claim petition shall be determined by the Court dealing with the claim or objection and the parties need not be driven to a separate suit. Sub-rule (3) refers to the manner in which the Court should grant relief when it accepts the claim petition or rejects it. Sub-rule (4) provides that if any claim or objection is adjudicated upon under the said rule; the order shall have the same force and be subject to the same conditions as to appeal or otherwise, as if it were a decree. Lastly, sub-rule (5) states that if a claim or objection is preferred under sub- rule (1) and the Court refuses to entertain it, the party aggrieved may institute a suit to establish his right and subject to the result of the suit, the order refusing to entertain the' claim or objection shall be conclusive. In spite of R. 58 of 0. 21 being so comprehensive in its terms and providing adequate opportunity for a claimant to put forth his claim, the learned counsel for the petitioner would say that the rule provides for a summary procedure and it discriminates between a party claiming title to a property in a regular suit and a claimant claiming title over a property that has been attached in execution proceedings.

3. The contentions of the learned counsel for the petitioner are clearly unsustainable. As already stated, certain changes have been effected in R. 58 of O. 21, in order to provide a more effective remedy for the parties and to avoid multiplicity of proceedings and to give finality to orders passed under the rule, subject to the limitations contained in the rule, viz., the order being liable to be challenged in appeal, etc. The rule does not say anything about the enquiry being of a summary nature. It is open to a party to adduce evidence to prove his claim and there is nothing in the section to make the Court adopt a summary procedure, when dealing with an application under O. 21, R. 58. On the other hand, sub rule. (4) of R. 58 makes it clear that the order shall have the status of a decree and on account of that an aggrieved party can file an appeal against the order passed in rejection of the claim. If the claim petition has not been considered on merits, but rejected for some reason or other, the affected party has got a right of suit under sub-rule (5). The learned counsel for the petitioner strangely contends that the right of suit provided under sub-rule (5) is an illusory provision. But except levelling such a charge, he is not able to substantiate his argument with any tangible material.

4. The learned counsel then stated that repeal of R. 63 of O. 21 in the old Code has caused great hardship to the parties. But this contention fails to take note of the fact that sub-rule (5) of R. 58 provides what R. 63 originally contained. There is therefore absolutely no merit in the contention of the petitioner that 0. 21, R. 58 is discriminatory in nature and hence it is ultra vires the Constitution.

5. Apart from the above conclusion, it has to be pointed out that the petitioner has availed of his rights under the-rule and has filed a revision to this Court and it is said to be pending admission. In such circumstances, it is futile for the petitioner to attack the validity of 0. 2 1, R. 58 of the Civil P.C. on the ground that it is not in accordance with the Constitution.

6. For the aforesaid reasons, the petition does not merit admission and will therefore stand dismissed.

7. Petition dismissed.


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