A claim petition under Order 21 Rule 58 of CPC cannot be maintained without proof of the claimant's right over the property at the time of attachment.

JUDGMENT :

1. The appellant is the first respondent in E.A.No.1394/2007 filed under Order 21 Rule 58 of the Code of Civil Procedure and the decree holder in the suit. The 1^st respondent is the claim petitioner who filed E.A.No.1394/2007. The 2^nd respondent is the 2^nd respondent in E.A.No.1394/2007 and judgment debtor in the suit.

2. The brief facts which are essential for the disposal of the Appeal are: The appellant filed O.S.No.54/2003 on 30.01.2003 against the second respondent for realisation of an amount of Rs.1,01,550/- with interest. The appellant obtained attachment before the judgment of the property of the 2^nd defendant on 03.02.2003 as per order in I.A.No.700/2003. The suit was decreed in favour of the appellant as per the judgment and decree dated 31.10.2003. The appellant filed E.P.No.166/2005 for realisation of the decree debt. During the pendency of the Execution Petition, the first respondent filed E.A.No.1394/2007 praying to vacate the attachment over the plaint schedule property. The claim of the first respondent is that she purchased the property as per Ext.A1 Sale Certificate dated 18.02.205 from HSBC Bank, Vellayambalam, in the sale conducted by the Bank under the provisions of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) when the loan granted to the second respondent was defaulted by him to the Bank.

3. As per the allegations in E.A.No.1394/2007, the 1^st respondent/claim petitioner purchased 1.72 Ares of property from the Bank as per Ext.A1 Sale Certificate and for Rs.3,25,000/-. She affected the mutation of the property and paid tax in her name. There is no charge over the property as on the date of the decree. The court has specifically disallowed the prayer for creating charge over the decree schedule property. The first respondent is a bonafide purchaser of the decree schedule property for valid consideration from the secured creditor-HSBC Bank.

4. E.A.No.1394/2007 was allowed by the Execution Court as per the order dated 19.06.2013. Though the appellant/decree holder filed A.S.No.91/2013 before the First Appellate Court, the same was dismissed confirming the order of the Execution Court.

5. This Execution Second Appeal is admitted on the following substantial question of law:

(i) When it is not established that the first respondent/auction purchaser had right over the property under attachment on the date of attachment, can an application Order 21 Rule 58 of CPC be maintained?

6. After hearing the learned counsel on both sides, this Court formulated the following additional questions of law as per order dated 03.04.2025:

(ii) Whether there is perversity in the finding of the First Appellate Court that the petition schedule property was mortgaged in favour of HSBC Bank on 13.01.2003 i.e, before the attachment of the property by the decree holder, relying on Ext.X5 when there is no evidence before the court to enter such a finding?

(iii) Whether the Trial Court as well as the First Appellate Court were right in allowing the claim petition filed by the first respondent in the absence of any proof before the court that the alleged mortgage in favour of the secured creditor which sold the property to the first respondent is prior to the date of attachment?

7. Thereafter, the counsel on both sides were heard further.

8. The learned counsel for the appellant, Sri. T.M.Chandran, argued that, admittedly, the attachment order was passed on 03.02.2003 and the same was effected on 06.02.2003. There is no evidence before the court to prove that there was mortgage in favour of the secured creditor from whom the claim petitioner purchased the property before the date of attachment. The Trial Court, as well as the First Appellate Court, acted illegally in finding that the secured creditor Bank is having first charge over property without any evidence as to the date of mortgage before the court.

9. On the other hand, the learned counsel for the first resp