"C.R."

1. Following questions are raised for a decision in this petition filed under Article 227 of the Constitution:

(i) Whether, a judgment debtor who had not objected to an attachment of immovable property made before judgment could raise objection to the attachment in execution of the decree?

(ii) Whether, a judgment debtor who disclaims right over the property attached could make a claim or objection under Rule 58 of Order XXI of the Code Civil Procedure (for short, "the Code")?

2. Short facts of the case are: Respondents filed O.S. No.773 of 2001 in the court of learned Sub Judge, Palakkad for recovery of money from petitioners. In the course of the suit certain item of immovable property allegedly belonging to the petitioners was attached invoking power under Rule 5 of Order XXXVIII of the Code. Petitioners did not prefer any objection to attachment. The attachment before judgment was made absolute. Later a decree was passed in favour of respondent for recovery of money from petitioners. Since the property attached is situated within territorial limits of jurisdiction of Sub Court, Palakkad and respondent wanted execution against the property attached, decree certificate was transmitted to the court of learned Sub Judge, Palakkad. There, respondent filed E.P. No.85 of 2005 and wanted to proceed against the attached property after preliminary steps were over. At that stage petitioners filed a statement (which as stated in the impugned order admitted their right over the property attached) requesting for payment of the decree amount by installments. Petitioners then filed an additional counter statement disclaiming right over the attached property and contending that said property belonged to the South Malabar Trading Company and hence is not liable to be proceeded with in execution of the decree against them. In the executing court two objections were raised by the respondent; viz., that petitioners having not raised any objection to the attachment before judgment before the trial court are precluded from raising such an objection in the executing court and secondly; since petitioners are disclaiming right over the property attached, they could not make any claim or objection as contemplated under Rule 58 of Order XXI of the Code. Executing court accepted the contentions and rejected objection raised by petitioners. Exhibit P2, order directing sale of the property in public auction is under challenge in this petition. Learned Senior Advocate contended that executing court was not correct in holding that petitioners having not raised any claim or objection against attachment on the trial side are precluded from raising the objection in execution. According to the learned Senior Advocate in view of Rule 11 of Order XXXVIII attachment before judgment continues to be an attachment in execution and there is nothing illegal in petitioners-judgment debtors objecting to saleability of the property under attachment even in execution notwithstanding that they have not raised such an objection on the trial side. Reliance is placed on the decisions in Mohammed Harris v. Fathima (1993 [1] KLT 558) and S. Noordeen v. V.S.T. Venkita Reddiar (1996 [1] KLT 761). As regards the objection of petitioners that attached property does not belong to them is concerned, argument advanced by learned Senior Advocate is that executing court can order sale of only property of the judgment debtor and hence it is within the right of the judgment debtor to point out that the property being brought up for sale does not belong to him and if such an objection is raised, executing court has to conduct an enquiry whether the property attached and being brought up for sale did belong to the judgment debtor.

3. So far as the first question raised by the learned Senior Advocate is concerned, it is not disputed that when the property was placed under attachment before judgment petitioners had not raised any objection as to the attachability of the pr