Headnote:
Code of Civil Procedure – O. 21, R. 58 – Limitation Act – Art. 137 – Claim Petition – These two appeals are filed against the orders in E.A. and E.A. in O.S. on the file of the Sub Court – Both these are claim petitions filed under O. 21, R. 58 of the Code of Civil Procedure – The court held that the property was not liable to be attached– Similar reasoning was adopted in the other E.A. also– It is against the above orders that the E.F.As are filed– Held, O. 21 R. 58 of CPC enables a person to file a claim petition, when once a property is attached by the court – It may happen that the property may not belong to the judgment debtor and it would have been attached as if it belonged to the judgment debtor – In such cases, a provision is made to enable the owner of the property to file a claim petition and get the property released from attachment instead driving the party to file a separate suit – After the amendment of the CPC in 1976, it has been laid down that all questions including those relating to right, title or interest in the property shall be determined by the Court dealing with the claim or objection and not by a separate suit – Court is here only concerned with the question whether any period is fixed for the purpose of filing a claim petition – the Court before which the petition comes for adjudication will not entertain the application, if the property, which is attached is also sold or where the claim or objection is unnecessarily delayed – When this Provisos is there, Court cannot import the period prescribed under the Limitation Act – If Art. 137 of the Limitation Act applies, then Clauses (a) and (b) of the proviso to O. 21 R. 58 of CPC will become otiose – Court can never intend that a rule or provision was made unnecessarily – Further a claim petition can be filed so long as the attachment subsists – Hence, we are of the view that there is no particular period prescribed for filing the claim petition – The court can entertain a claim petition subject to restrictions mentioned in Clauses (a) and (b) of the Proviso – In the present case, Court find that the sale has not been held – It is further found that the petitioners have approached the court as soon as they came to know that the property was to be sold – That discretion, according to Court, has been properly exercised by the court below – Hence, according to Court, the claim petitions cannot be thrown out on the ground of delay –Court is are in the dark as to how the claim petition was disposed of – It is true that the claim petition has been dismissed– But an application for withdrawal was filed –Order is not available in the files– Further, we don't know under what circumstances the claimants earlier withdrew from the petition– So also the present appellants are not parties to Ext. A7 – In the circumstances,Court is of the view that the matter requires fresh consideration at the hands of the Executing Court – Parties are to be given opportunity to adduce evidence regarding their right and also regarding the earlier proceedings–In the above view of the matter, Court set aside the impugned orders passed in the claim petitions – Appeals are allowed– The Executing Court is directed to consider the matter afresh– Appeals Allowed

Judgement Key Points

Key Points: - The court held that there is no fixed period for filing a claim petition under Order 21 Rule 58 CPC; it can be entertained so long as the attachment subsists, subject to Proviso clauses (a) and (b) (i.e., before sale or not unnecessarily delayed) (!) (!) (!) (!) . - If the attached property has already been sold, or if the claim/ objection was unnecessarily delayed, the petition shall not be entertained (!) (!) (!) (!) . - After the 1976 CPC amendment, all questions relating to right, title or interest in the property are to be determined by the court handling the claim/objection, not by a separate suit, and the Proviso limits apply to entertainment of the petition (!) (!) . - In the case, the sale had not been held and petitioners approached promptly after learning of impending sale; thus delay was not deemed deliberate/unnecessary (!) (!) . - Prior claim petitions dismissed or disposed of on default or concession may still be revisited; the executing court must consider afresh, and an order of dismissal might not bar a new claim petition where the circumstances require fresh consideration (!) (!) (!) . - The court set aside the impugned orders and directed the Executing Court to consider the matter afresh, allowing parties to adduce evidence on their rights and prior proceedings (!) .

What is the time limit for filing a claim petition under Order 21 Rule 58 CPC when attached property is involved?

What is the effect of the Proviso to Order 21 Rule 58(1) CPC on maintaining a claim petition where the property has not been sold?

What are the circumstances under which a claim petition can be entertained when the attached property is later sold or when prior claim petitions were disposed of or withdrawn?

Judgment :-

Sankarasubban, J.

These two appeals are filed against the orders in E.A. No. 131 of 1999 and E.A. No. 87 of 2000 in O.S. No. 644 of 1992 on the file the Sub Court, Tirur. E.F.A. No. 43 of 2001 is filed against the order in E.A. No. 131 of 1999, while E.F.A. No. 44 of 2001 is filed against the order in E.A. No. 87 of 2000. Both these are claim petitions filed under order 21 Rule 58 of the code of civil Procedure (hereinafter referred to as C.P.C.).

2. Appellant, in both these appeals, Anthony is the decree holder in O.S. No. 644 of 1992 of the Sub Court, Irinjalakuda. He filed the suit against the defendant - T.V. Viswanathan for recovery of money. After the filing of the suit, the appellant herein attached before judgment two items of properties by filing POP No. 22 of 1988. These two items of properties are 34.25 cents in Sy. No. 297/4A and 1 acre and 28 cents in Sy. No. 268/2. On 27.2.1988, the court called upon the respondent- Viswanathan to furnish security and to satisfy the plaint claim on or before 30.3.1988. It also issued conditional order. Since no security was furnished the property was attached on 1.3.1988.

3. It appears that thereafter, a claim petition was filed against the attachment. That was filed by the claimants Nazar and Jayaram praying for release of attachment as according to them, the properties do not belong to the judgment debtor. The claim petition is dated 8.3.1988. In the affidavit filed along with the claim petition, it is stated that the schedule properties were sold to the claimants and to one Dharmarajan, Raveendran, Appukuttan, Nizamudeen and Yuseff. The sale deed is dated 1.2.1988 and it was executed through Malappuram Sub Registry Office for valuable consideration by power of attorney holder of T.V. Viswanathan - defendant in the case. On the date of attachment, Viswanathan had no right over the properties. Certified copy of the claim petition is produced as Ext. A11 in the case.

4. It seems that the claimants had filed I.A. No. 67 of 1993 to withdraw the claim. On 11.3.1993, the claim petition was dismissed. It is further seen that on the same day, i.e., 11.3.1993, the suit was decreed. The attachment was made absolute and the decree passed was charged on the properties. Thereafter, it is seen that an execution petition was filed by the decree holder on 24.8.1997 for sale of the properties. It is then that the two claim petitions were filed. E.A. 131 of 1999 was filed on 11.6.1999 and it was filed by the Secretary, Darul-Huda Islamic Academy Managing Committee. In the affidavit accompanying the claim petition, it was stated that the properties originally belonged to Viswanathan and by sale deed No. 201/1988, the properties were sold to strangers and that the properties have been assigned to the petitioner. The portions of the property attached have been sold to them. It is stated that Viswanathan had no right at the time of attachment. According to them, they came to know about the sale only on 14.6.1999. But they were informed that the property has been posted for sale. Hence, they prayed for releasing the attachment.

5. In the objection filed by the decree holder, it is stated that the properties were attached by order in I.A. No. 345 of 1988 on 26.2.1988. They referred to I.A. No. 432 of 1988 which is the claim petition. That claim petition was dismissed on 11.3.1993 and that order has become final. After the disposal of I.A. No. 432 of 1988, the petitioners in those I.As. have no right to sell the properties. It is further stated that the attachment was noted in the Sub Registry office. The present petitioners are later assignees and the encumbrance certificate will show that the properties were attached and hence, the contention that they know about the attachment only recently is not correct and that the petition is barred by limitation and also that the claimants have no right.

6. Similarly another claim petition was filed by Abdul Wahab and others as E.A. No. 87 of 2000. It is

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2002 Supreme(Ker) 159

Judges : S.SANKARASUBBAN,R.BHASKARANAnthony - AppellantVersusKunjavarankutty Hajee - RespondentCase No : EFA. No. 43 of 2001Decided On : 03/13/2002Advocates Appeared : For the Petitioner: M.M. Abdul Aziz (Sr.) M.A. Abdul Hakhim, Advocates. For the Respondent:R. Ramadas, T. Krishnanunni, Advocates.

What is the time limit for filing a claim petition under Order 21 Rule 58 CPC when attached property is involved?

What is the effect of the Proviso to Order 21 Rule 58(1) CPC on maintaining a claim petition where the property has not been sold?

What are the circumstances under which a claim petition can be entertained when the attached property is later sold or when prior claim petitions were disposed of or withdrawn?

Cases Referred (1)