The right to contest an attachment order remains valid even after a sale certificate is issued, provided objections are made before the sale is made absolute.

ORDER :

GAUTAM KUMAR CHOUDHARY, J.

1. The petitioner has filed the instant civil misc. petition under Article 227 of the Constitution of India for quashing the order dated 24.06.2025 passed in Execution Case No. 01/2024, arising out of Money Suit No. 04/2020, whereby and whereunder, direction has been passed for issuance of sale certificate in favour of opposite party no. 1/decree holder.

2. Brief facts, leading to the present case, are that the aforementioned money suit was filed by opposite party no. 1 for decree of Rs. 29,49,000/- impleading Manoj Kumar, Proprietor of Madam Mala Institute of Hotel Management, District Hazaribagh. The said suit was decreed ex-parte vide judgment dated 30.06.2023 and the said judgment and decree attained finality.

3. The execution case was filed under Order XXI Rule 10 of CPC. The description of movable and immovable property of the petitioner society situated in Village-Banahappa, P.S.-Mufassil (Sadar), P.S. No. 212 and Dist.-Hazaribagh was given as detailed in Schedule A which is descripted as under:

4. The main contention of the petitioner is that the property, in question was not exclusive property of the judgment debtor–Manoj Kumar and, therefore, it could not have been included in Schedule-A which has been attached.

5. An objection was raised under Order XXI Rule 58 of CPC which was rejected by the learned executing court, which was assailed erroneously before this Court in C.M.P. No. 596 of 2025, instead of under Order XXI Rule 58(4) of the C.P.C. Consequently the said civil misc. petition was withdrawn with liberty to work out legal remedy against the impugned order.

6. The main contention of the petitioner is that after the said civil misc.petition was withdrawn, the petitioner could not assail the order of attachment, since auction sale was held and sale certificate was also issued. Therefore, any application for challenge to the attachment became infructuous because of passage of time. In this view of the matter, the sale certificate is under challenge before this Court which is not an appealable order under Order 43 of CPC.

7. On merit, it is argued that the Executing Court misdirected itself to attach the property in the first instance, as the property did not exclusively belong to the judgment debtor-Manoj Kumar, rather it was of the petitioner-Society and secondly, the property is urban land measuring 2.52 acres, which has been under value and sold to the auction purchaser – opposite party for a meagre sum of Rs. 29 Lakh.

8. It is argued by learned counsel for the decree holder/opposite parties that the impugned order is not factually appealable, but a suit will lie. Further, so far as the merit of the order passed by the Executing Court regarding attachment is concerned, it is submitted that it had considered all the aspects and has taken into account the fact that property were actually that of Manoj Kumar who was the judgment debtor and that did not exist a separate legal entity in the form of the society separate from the judgment debtor. The present petitioner is none else but the wife of the judgment debtor-Manoj Kumar.

9. Having considered the submissions advanced on behalf of both the sides, the undisputed fact that emerges is that the order of attachment was challenged by the petitioner which was rejected by the learned Executing Court on 20.05.2025. The proper course should have been to file an appeal under Order XXI Rule 58 (4) CPC. However, the petitioner erroneously approached this Court by filing the instant CMP under Article 227 of the Constitution of I