IMPORTANT POINT
Claim petitions under Order 21 Rule 58 CPC are unmaintainable if no attachment of the property exists in execution of a decree.

JUDGMENT :

(P.V. Balakrishnan, J.)

Ex.FA.Nos.2/2024, 3/2024 and Ex.FA No.4/2024 are filed by the claim petitioners, challenging the orders passed in EA.Nos.2/2020, 13/2020 and E.A.No.16/2020 respectively in E.P No.46/2017 in O.S.No.57/2015 by the Sub Court, Alappuzha dismissing their applications purportedly filed under Order 21 Rule 58 CPC.

2. It is the case of the claim petitioners that they have purchased the properties described in the schedule, in 2015 from one Sebastian Varghese, who is the first judgment debtor/first defendant. It is contended that, the said Sebastian Varghese was the absolute owner in possession of a larger extent of 40 Ares and 46 Sq. meters of property, and he assigned a portion of it to the claim petitioners. It is also contended that, while the claim petitioners were thus enjoying the properties, they came to know that the entire larger extent of 40.46 Ares of property is put in auction sale by the Sub Court, Alappuzha in E.P.No.46/2017, in O.S.57/2015. The properties purchased by the claim petitioners are also included in the auction sale and if the sale is proceeded with, it will cause irreparable loss and injury. The claim petitioners are not indebted to the decree holder, and the decree holder and the judgment debtor are fraudulently attempting to snatch their properties. The proclamation schedule was also not affixed anywhere in the property. Hence, the claim petitioners prayed for excluding the petition schedule property from the auction sale.

3. The first respondent filed objections to the claim petitions by contending that, the petitions are not maintainable and that the property has already been sold in court auction on 1/1/2020. It is contended that, the property was under equitable mortgage in favour of the first respondent and in the suit a compromise decree was passed on 26/8/2016 allowing the decree holder to realise the decree amount charged over the property. It is also contended that, the sale deed was executed in favour of the claim petitioners with an intention to delay and defeat the claim of the first respondent and that the same is null and void. It is further contended that, the claim petitioners were aware about the execution proceedings and the mortgage, and that the petitions are filed in collusion with the judgment debtor.

4. By the impugned orders, the executing court dismissed all the claim petitions stating that sale has already been conducted.

5. Heard the learned counsel for the appellants and the first respondent. Perused the records.

6. The points that arise for consideration in these appeals are:

i) Whether the claim petitions filed by the appellants are maintainable?

ii) Whether the impugned orders passed by the executing court are correct and whether, the same require any interference?

iii) Reliefs and costs.

7. The learned counsel for the appellants contended that, the claim petitioners have purchased the respective properties much before the institution of the suit and they are bona fide purchasers. He argued that, the suit was filed without arraying the claim petitioners as parties and a compromise decree was passed by creating a charge over the entire property. According to the learned counsel, the entire affair is a fraudulent attempt to deprive the claim petitioners of their properties and hence, he prayed that, the properties of the claim petitioners may be excluded from the auction sale.

8. Per contra, the learned counsel for the first respondent submitted that, the claim petitions as such are not maintainable since, there was no attachment over the property at any point of time. He argued that, the chitty transactions were on the basis of an equitable mortgage and the compromise decree passed only creates a charge over the property for the decree amount.

9. In the present case, even though the claim petitions are seen filed by incorporating Order 21 Rule 90 read with Section 151 CPC, the prayer in these petitions is to exclude the petition scheduled prop