Point of Law: Order 21 Rule 58(1) of CPC reads adjudication of claims to, or objections to attachment of, property.

JUDGMENT :

SOPHY THOMAS, J.

1. This appeal has been preferred by the decree holder in E.P. No. 45 of 2006 in OP No. 990 of 2005 on the file of Family Court, Thiruvananthapuram, challenging the order dated 27.01.2014 in E.A No. 165 of 2013, which was a claim petition filed by the 1st respondent.

2. The facts necessary for this appeal could be summarised as follows:

The appellant herein filed OP No. 990 of 2005 for recovery of patrimony, maintenance etc. against the 2nd respondent herein, who is her husband. That O.P was decreed in her favour, and she filed E.P. No. 45 of 2006 and proceeded against the attachment schedule property which was six cents of land comprised in survey No. 358/14 of Kalliyoor village, for realising the decree debt. That property was sold in court auction and the appellant purchased that property, in the court auction held on 29.06.2011. Sale was confirmed on 29.08.2011, and sale certificate was issued in her favour on 13.06.2012. While the E.P. was posted for delivery, on 18.12.2013 the 1st respondent herein filed a claim petition as E.A No. 165 of 2013 contending that, the 2nd respondent is her husband and the auctioned property belonged to her, as it was given to herself and her husband as her share by her father. According to her, she was the absolute owner of that property, though the name of the 2nd respondent/husband was also shown in that document. So, she wanted to exempt her property from the sale proceedings.

3. The appellant/decree holder objected that petition contending that, there was no marital relationship between respondents 1 and 2, and the property was liable to be proceeded for the dues to be recovered from her husband.

4. The court below allowed the claim petition filed by the 1st respondent and lifted the attachment finding that, there was nothing to prove title of the 2nd respondent/judgment debtor over that property. The order of the Family Court in E.A No. 165 of 2013 dated 27.01.2014 is under challenge in this appeal.

5. Though service was complete on respondents 1 and 2, they opted to remain absent.

6. Heard learned counsel appearing for the appellant.

7. We are called upon to answer whether there is any illegality or impropriety in the impugned order warranting our interference. Incidentally, we have to answer whether a claim petition filed after confirmation of the sale is to be entertained in view of the specific bar under proviso (a) to Order 21 Rule 58 (1) of CPC.

8. In the case on hand, the auction of the property was held on 29.06.2011. Sale was confirmed on 29.08.2011. Sale certificate was issued on 13.06.2012. The claim petition was filed by the 1st respondent on 18.12.2013 i.e. after confirmation of the sale and issuance of the sale certificate.

9. Order 21 Rule 58(1) of the CPC reads thus:

“58. Adjudication of claims to, or objections to attachment of, property:

(1) Where any claims preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:

PROVIDED that no such claim or objection shall be entertained:

(a) where, before the claim is preferred or objection is made, the property attached has already been sold.

(b) where the court considers that the claim or objection was designedly or unnecessarily delayed.”

10. Apparently, a claim petition or objection to the attachment, with regard to the property attached in execution of a decree shall not be entertained, where before the claim is preferred or objection is made, the property attached has already been sold or where the court considers that the claim or objection was designedly or unnecessarily delayed.

11. Now we have to consider when a property under attachment can be said to be ‘sold’ under proviso (a) to Rule 58(1).

12. Section 65 of the Civil Procedure Code says that where immovable property is sold i