An application under Order 21, Rule 58, C.P.C. cannot be entertained after the sale of the attached property.

This Civil Revision is directed against an order of the learned Munsiff, Kamalpur, entertaining an objection of the opposite party under Order 21. Rule 58, Civil Procedure Code, with regard to attachment of certain property made in the course of execution in Execution Case No. 4 of 1969 arising out of Money Suit No. 2 of 1968.

2. The petitioner before this Court is the decree-holder. In the course of the aforesaid execution proceeding certain immovable property was attached on 20th March, 1969 and auction sale took place on 15th September, 1970 and it was posted for confirmation of sale to 30th October, 1970. On that day the order-sheet shows that a copy of an application addressed by the Executive Engineer to the District Magistrate was received by the Munsiff by post and he fixed 21-11-1970 for orders, although it was hardly necessary for him to take notice of the same in the absence of a proper application. However, on the 21st November, 1970, the Union of India filed an application before the Court under Order 21, Rule 58, objecting to the attachment of the said property following which the same had been sold. The ground given apparently was that in an arbitration proceeding between the judgement-debtor and the Union of India status quo was ordered to be maintained by the learned Additional Subordinate Judge. The learned Munsiff, therefore, felt helpless and stayed further proceedings and did not even intend to adjudicate upon the claim of the Union of India so far made in the application under Order 21, Rule 58, C. P.C.

3. The short point that arises for consideration in this case is whether after the sale of the attached property had taken place the application under Order 21, Rule 58, C. P.C. is maintainable.

4. Mr. J.K. Roy, learned counsel for the petitioner, submits that the executing Court had no jurisdiction to entertain such an application after the sale had taken place on 15th September, 1970. On the other hand, Mr. R. Ghosh, learned Government Advocate, representing the Union of India, submits that there is no error of jurisdiction in entertaining the application, although he very frankly submits that the Court below need not have stayed its hands but should have adjudicated the matter.

5. Mr. Ghosh has pointed out that there has been a conflict of Judicial opinion on this point in several High Courts. The best case, according to him, in his favour which he placed before me is a Single Bench decision of the Rajasthan High Court reported in AIR 1963 Raj 144 Chhoga Lal v. Khet Mal. On the other hand, Mr. Roy has drawn my attention to a decision of the Calcutta High Court reported in AIR 1937 Cal 300 Sasthi Charan v. Gopal Chandra. I have anxiously considered the two view points urged before me.

6. We may now read Order 21, Rule 58, which may be quoted :

"(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 around that such properly 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 respects, 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".

7. Immovable property in the course of execution is attached under Order 21, Rule 54, C.P.C. Attachment under that rule is made by an order prohibiting the judgement-debtor from transferring or charging the property in any way and all Persons from taking any benefit from such transfer or charge. There is a regular procedure by which after attachment sale has to take place for example, inter alia, under Order 21, Rule 66, C.P.C. proclamation i