1. The appellants, who are minors, have filed a claim petition under Order 21 rule 58 of Civil Procedure Code in E.A. No.6 of 2010 in E.P No.10 of 2009. The above execution petition was filed in a decree passed in O.S No.29 of 2006 filed by the respondents 1 and 2.

2. The respondents 1 and 2 filed the above suit for the return of the advance amount of Rs.10,00,000/- from one K. Nachimuthu Gounder and his two sons K.N.Balan and N. Gajendran. According to the purchasers, the father and two sons entered into a sale agreement dated 6.11.1995 and received a sum of Rs.10,00,000/- as advance. Though the intending purchasers were ready and willing, the vendors did not execute a sale deed. Meanwhile, it is found that one of the sons had already executed a Release deed in favour of father and brother and he had no title. Some third party have also interfered with the property and therefore, the vendors rescinding the contract of sale, have filed a suit for return of advance money.

3. According to the appellants, the father died on 4.5.2002. Wife and other two daughters were impleaded as parties. The wife died on 17.2.2004. There should be a factual error in the date of the death of these two persons. The original suit was filed in the year 2006 against Nachimuthu Gounder and his two sons. Only in pending suit, the wife and two daughters were impleaded as per order dated 19.9.2007.

4. However, the suit was resisted on two grounds – (i) the sale agreement was not genuine and (ii) the purchasers ought to have filed a suit for specific performance. However, the trial court found that the execution of the sale agreement was true and admitted and decreed the suit on 16.9. 2008, for return of the advance amount with subsequent interest.

5. The respondents/decree holders filed execution petition in E.P.No.10 of 2009 and sought for attachment and sale of the very same properties which was the subject matter of the agreement. Pending execution, the daughters of one of the son namely, Balan, 3rd respondent, have filed the claim petition, stating that they have 7/24th share in the properties sought to be attached and their claims have to be declared. The claim was as coparceners as per Sec.6 of the Hindu Succession Act 1956, as amended by the act 39 of 2005.

6. The respondents 1 and 2 resisted the claim.

7. Initially, the claim petition was dismissed on the ground that the claimants have not come forward to adduce any evidence. However, an order on merit was passed. The said order was challenged in CMA No.3002 of 2002 and this court set aside the order and remanded back the matter for fresh disposal after giving equal opportunities to both the parties.

8. Again the matter was taken up for enquiry by the Executing Court. Documents were filed. Parties were examined. However, the Executing court again dismissed the claim of the petitioners, against which the present appeal is filed on various grounds.

9. Reiterating the various grounds raised in the appeal, Mr.N. Manokaran, learned counsel for the appellants/claim petitioners submits that the executing court is wrong in dismissing the claim petition on the ground that the appellants were not even born at the time of execution of the sale agreement. He also pointed out that the execution of the sale agreement has nothing to do with the claim of the appellants.

10. He also pointed out that admittedly, in a partition of the year 1990, the grand father of the appellants was allotted properties which include the properties sought to be attached in the execution proceedings. After the death of the grandfather, his grandchildren became co-parceners in the ancestral properties along with their father and therefore, they are entitled for a share in the property.

11. He also pointed out that when a claim is made under Order 21 Rule 58 of Civil Procedure Code, the duty of the Court is to adjudicate such claim as envisaged in the provision. The learned counsel relied on the following case laws:

(i) 2008 (2) CTC 774