In execution proceedings, an application under Order XXI Rule 58 is only valid when there is an attachment of property; objections must relate to claims within that context.

JUDGMENT :

P.B. BALAJI, J.

1. The plaintiff-decree holder is the appellant, aggrieved by the order in E.A.No.1 of 2023 in E.P.No.90 of 2019 in O.S.No.622 of 2010, on the file of the II Additional District and Sessions Judge, Tiruppur.

2. The facts in brief:

The appellant, as plaintiff filed a suit for specific performance in O.S.No.622 of 2010, seeking enforcement of an agreement of sale dated 21.11.2007 and also for other consequential reliefs against one M.S. Balan, the 2^nd respondent herein. The 2^nd respondent, as defendant contested the suit and ultimately, the trial Court, by judgment and decree dated 07.10.2016, decreed the suit and granted the relief of specific performance, by directing the plaintiff to deposit Rs.48,20,000/- being the balance sale consideration. The appellant filed E.P.No.20 of 2017 and the Court also executed a sale deed on 08.10.2018, which has been registered as Doc.No.13083 of 2018 on the file of the SRO, Avinashi. The execution petition was thereafter terminated. For recovery of vacant possession, the plaintiff filed E.P.No.90 of 2019 and pending the said EP, the third parties moved an application under Order XXI Rule 58 of CPC. Two such applications were filed, one by Suresh (E.A.No.49 of 2018) and another by Shanmugam (E.A.No.53 of 2018). Both the said applications under XXI Rule 58 of CPC came to be dismissed by the learned District and Sessions Judge. Similar other claims by other third parties were also rejected. The 1^st respondent, in fact, filed an application under Order XXI Rule 58 of CPC, even in the earlier E.P.No.20 of 2017, which admittedly was dismissed. However, the 1^st respondent renewed his request and filed yet another application under Order XXI Rule 58 of CPC in E.A.No.1 of 2023 in the EP filed for recovery of possession, namely E.P.No.90 of 2019. The executing Court has dismissed the said EP by allowing the Order XXI Rule 58 of CPC application and also at the same time, nullified various registered documents, namely a Will and also settlement deeds and power of attorney. It is aggrieved by this order that the decree holder, as plaintiff, is on appeal.

3. I have heard Mr.R.Thiagarajan, learned counsel for the appellant and Mr.S.Ravichandran, learned Additional Government Pleader for the 1^st respondent.

4. Mr.R.Thiagarajan, learned counsel for the appellant would firstly contend that in an execution petition filed for recovery of possession, an application under Order XXI Rule 58 of CPC was per se not maintainable in the first place and unfortunately, the executing Court proceeded, as if the application was one under Section 47 of CPC and decided it, on erroneous assumption of facts and ignoring settled legal position. The learned counsel would further state that when the 1^st respondent had earlier made the very same attempt in E.P.No.20 of 2017 and the same had been dismissed and the said order has also become final, the 1^st respondent was estopped from agitating the very same issue in the subsequent EP, which was filed only for recovery of possession. In the absence of there being no challenge to the sale deed executed by the Court, the learned counsel would contend that the executing Court has proceeded to pass an erroneous and perverse order. He would also point out to the various directions issued by the executing Court and state that they were all beyond the scope of the very application filed by the 1^st respondent and the executing Court had no powers to nullify a Will executed as cancelled, leave alone various other registered documen