Claim petition not dependent upon continuity of execution petition.

1. This appeal has been preferred by the petitioner in E.A.No.490 of 1985 in E.P.No.49 of 1985 in O.S.No.73 of 1983 in the file of subordinate Judge, Erode, The said E.A.No.490 of 1985 was filed by the petitioner for raising attachment of his property made in E.P.No.49 of 1985 in O.S.No.73 of 1983.

2. The petitioner claimants case is that Messrs K.Somasundaram and K.Chidambaram who had 1/3 undivided share each in the petition mentioned property released their interest by a registered deed dated 23.7.1979 in favour of the petitioner after receiving valuable consideration. They ceased to have any interest in the petition mentioned property from and after 23.7,1979. the petitioner alone is the absolute owner of the entire petition property. In respect of three more release deeds, dispute arose between the petitioner and me second respondent. With a view to cause loss to the petitioner the second respondent created some promissory notes in the name of the first respondent and obtained a collusive decree in O.S.No.73 of 1983. In execution of the said collusive and fraudulent decree, the first respondent attached the petition property for selling it in E.P.No.49 of 1985 as if the second respondent somasundaram had interest in the petition property. The petitioner was not aware of the attachment and the execution proceedings, till 20.7.1985. the release deed executed by Chidambaram was challenged in I.P.No.46 of 1979 and it was dismissed. Since the property cannot be attached the petitioner filed the petition for filling the attachment.

3. A counter was filed by the first respondent wherein he has stated that the release deed challenged was created for the purpose of defeating and defrauding the creditors. There was no valuable consideration for the release deed. The property was worth Rs.40,000 and the consideration for the release deed is only Rs.5,000. Therefore, the first respondent has filed a suit for declaration that the release deed is not binding on the general body of the creditors. The suit O.S.No.1028 of 1981 is pending before the II Additional District Munsif, Erode. The petitioner is also a party to the said suit O.S.No.1028 of 1981. The decree obtained in O.S.No.73 of 1983 is a genious one. Therefore, the attachment need not be raised.

4. The learned Subordinate Judge appears to have closed the execution petition. Since the execution petition was closed, learned Judge has also has passed on order in the claim petition stating that since the execution petition is closed, the petition also is closed. Aggrieved by the said order, the claimant has filed this appeal before this Court.

5. The main contention urged by the learned counsel for the petitioner is that once a claim petition is filed under 0.21, Rule 58 and Sec.151 of Code of Civil Procedure a duty is cast upon the court to go into the merits of the case and arrive at a finding as to whether the attachment should be continued or raised. It must be treated as an independent suit and it is not depending on the continuation of the execution petition.

6. In my view there is some force in the said contention. 0.21, Rule 58 of C.P.C. contemplates the adjudication of right, title and interest in the property attached the provisions contained in 0.21, Rule

58 of Code of Civil Procedure are very specific in this regard. It is set out below:

”(1) Where any claim is 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, or

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

(2) All questions (including questions relatin