A claim under Order 38 Rule 10 of C.P.C is maintainable after the suit is decreed, and the attachment before judgment continues after the decree, adjudicable under Order 21 Rule 58 of C.P.C.

JUDGMENT

(Prayer: in CRP(MD).No.2634 of 2015 Civil Revision Petition filed under Section 115 of the Civil Procedure Code, to call for the records relating to the fair and decreetal order dated 25.09.2014 made in I.A.No.12 of 2013 in I.A.No.91 of 2009 in O.S.No.72 of 2009 on the file of the I Additional District Judge, Madurai, set aside the same and consequently allow the civil revision petition.)

Common Order

1. All the revision petitions have been filed by the decree holder in a money suit challenging the allowing of claim petitions filed under Order 38 Rule 10 of C.P.C.

Factual background:

2. The revision petitioner as plaintiff had filed O.S.No.72 of 2009 on the file of the I Additional District Court, Madurai for the relief of recovery of a sum of Rs.8,00,000/-. Pending suit, the plaintiff had filed I.A.No.91 of 2009 seeking an order of attachment before judgment. The said application was allowed on 28.10.2009. The suit was decreed exparte on 15.02.2010. The decree holder filed E.P.No.1 of 2013 to bring the attached property for sale.

3. While the execution petitions were pending, seven claim petitions in I.A.Nos.12 to 18 of 2013 were filed by seven claimants contending that all of them have purchased the property on 23.04.2008 from the defendants through his power agent. They have further contended that they had purchased the property one year prior to the filing of the suit and therefore, on the date of passing of the order of attachment before judgment, the defendant was not the owner of the property. Hence, we prayed for rasing the order of attachment. All these seven interim applications were filed in I.A.No.91 of 2009.

4. The decree holder filed a counter in all the claim petitions contending that the claim petition under Order 38 Rule 10 of C.P.C is not maintainable and only a petition under Order 21 Rule 58 of C.P.C is maintainable. The decree holder further contended that the power deed that was executed by the defendants in favour of one Ayyadurai and Rajendran was cancelled on 22.02.2008 and another power deed was executed by the defendant on 25.02.2008 in favour of one Padmanabhan. However, the sale deed in favour of the claimants has been executed by Ayyadurai and Rajendran on 23.04.2008 without any authority whatsoever. Therefore, the claim petitioners do not have any title to the property and the claim petitions have been filed with a malafide intention to drag on the execution proceedings.

5. The trial Court relied upon Order 38 Rule 10 C.P.C to arrive at a finding that the sale deed in favour of third party has been executed one year prior to the filing of the suit and therefore, the said property could not have been attached under I.A.No.91 of 2009 on 28.10.2009. However, the trial Court did not go into the issue of validity of the sale deed and proceeded to hold that the sale having taken place one year prior to the order of attachment, would not be binding upon the third party and raised the order of attachment. Challenging these seven orders, the present revision petitions have been filed.

Submissions of the Counsels:

6. The learned counsel appearing for the revision petitioner had contended that after a suit has been decreed, an application under Order 38 Rule 10 of C.P.C cannot be filed in I.A.No.91 of 2009. Therefore, filing of the application itself is not maintainable. The learned counsel had relied upon the judgment of this Court reported in 2019-3-L.W.970 ( Surya Pelle Chemical & Mould Vs. Hi-Lite Leathers and others) to convince the Court that once a decree is passed, the Court becomes functus officio and thereafter, cannot proceed to pass order in the interim applications that were filed prior to the decree.

7. The learned counsel for the revision petitioner had further contended that the claim petitioners have to establish their independent title to the property. Merely on the basis of the date of sale deed, the claim petitioners cannot succeed. In the present case, the defendant had executed a power o