IMPORTANT POINT
The main legal point established in the judgment is that the claim petition under Order XXI Rule 58 of the Code cannot be entertained if it is made with the ulterior motive of defeating a decree obtained in a suit.

JUDGMENT :

Harisankar V. Menon, J.

This first appeal is filed by the applicant in E.A.No.5 of 2023 in E.P.No.32 of 2020 in O.S.No.7 of 2015 before the Subordinate Judge’s Court, Tirur. By the said order, the application presented under order XXI Rule 58 of the Code of Civil Procedure (for short, the ‘Code’) by the petitioner herein, has been rejected by the trial court.

2. The brief facts, necessary for the disposal of this appeal, are that the 1st respondent herein had filed O.S.No.7 of 2015 against the 2nd respondent herein. The above suit was decreed creating a charge on the properties of the 2nd respondent herein. For the realisation of the decree, the property of the 2nd respondent herein was put for sale in public auction on 19.7.2023, pursuant to the order of the execution court, which was sold in auction on 19.7.2023. The petitioner herein is none other than the daughter-in-law of the 2nd respondent herein. She had filed O.P.No.663 of 2023 before the Family Court, Tirur, for realising a sum of Rs.46,20,000/- from her husband and father-in-law (2nd respondent herein), being the value of her gold ornaments appropriated by them, along with I.A.No.2 of 2023 for attachment of the immovable property owned by the 2nd respondent (fatherin- law). It is stated that, she came to know from the office of the Sub Registrar that separate execution proceedings were pending before the Sub Court, Tirur, against the very same property, in a suit filed by the 1st respondent herein. In such circumstances, the petitioner herein filed E.A.No.5 of 2023 in E.P.No.32 of 2020 in O.S.No.7 of 2015 before the Sub Court, Tirur under Order XXI Rule 58 of the Code, for lifting the attachment.

3. The 1st respondent herein-decree holder entered appearance before the execution court and objected the application, pointing out that it is nothing but a collusive effort for salvaging the properties of the 2nd respondent herein. It is also pointed out by the decree holder that the petitioner and her husband are still living with the 2nd respondent in his house, which proves that the present application is a ruse to thwart the attempts to enjoy the fruits of the decree.

4. The trial court, by the impugned order dated 11.12.2023 found that an application under Order XXI Rule 58 of the Code can be filed only when there is an attachment made by the court, the details of which are not placed on record; that the claim petition is a delayed one; that there is no attachment in the suit, etc. Finding thus, and also relying on certain precedents as regards the circumstances under which Order XXI Rule 58 of the Code can be maintained, the execution court rejected the claim petition filed by the petitioner herein.

5. It is against the above order dated 11.12.2023, that this appeal is filed by the appellant.

6. We have admitted this appeal on 05.03.2024 and granted stay of further proceedings in the execution petition before the Sub Court, Tirur.

7. Today, we have heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1st respondent.

8. It is contended by the learned counsel for the appellant that the execution court went wrong in rejecting the claim petition. It is contended that the execution court issued the impugned order without proper adjudication and the finding that the application was delayed, is incorrect. Reference is also made to the attachment passed by the Family Court on 16.06.2023. It is only thereafter, that the appellant came to know about the execution proceedings before the execution court on account of which, no delay can be attributed.

9. It is contended on behalf of the 1st respondent-decree holder that as contended before the execution court, the present attempt by the appellant is only to salvage the properties of the 2nd respondent (father-in-law). He prayed that the appeal may be rejected.

10. We have considered the rival submissions of the contesting parties, and also perused the findings contained in the impugned