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1997 Supreme(All) 469
IN THE HIGH COURT OF ALLAHABAD
R. K. Mahajan
SURAJ MUKHI - Appellant
Versus
BHIKAM SINGH - Respondents
First Appeal 218 Of 1983
Decided On : 04/25/1997
BENI PRASAD AGARWAL, Dhan Prakash, P.R.PAL, R.N.SHARMA
A suit for cancellation of a sale deed executed by the judgment debtor in favor of a third party is not maintainable when the property in question is attached before judgment and the decree-holder seeks to satisfy his decree by way of sale of the attached property. The proper remedy for the objector is to file an objection under Order XXI, Rule 58 CPC and subsequent provisions.
Headnote:
CIVIL PROCEDURE CODE - ORDER XXI, RULE 58 - ATTACHMENT OF PROPERTY - OBJECTION TO ATTACHMENT - SUIT FOR CANCELLATION OF SALE DEED - MAINTAINABILITY - THIRD PARTY CLAIM - ADJUDICATION BY EXECUTING COURT - REMEDIES AVAILABLE TO THIRD PARTY.
Fact of the Case:
A suit was filed for cancellation of a sale deed executed by the judgment debtor in favor of the objector, claiming that the sale was fraudulent and illegal. The property in question was attached before judgment and the decree-holder sought to satisfy his decree by way of sale of the attached property.
Finding of the Court:
The court held that the suit for cancellation of the sale deed was not maintainable. The proper remedy for the objector was to file an objection under Order XXI, Rule 58 CPC and subsequent provisions, and not by way of a suit. The court further held that the Executing Court has the jurisdiction to adjudicate upon the claim or objection and determine all questions, including questions relating to right, title, or interest in the property attached.
Issues: 1. Whether a suit for cancellation of a sale deed executed by the judgment debtor in favor of a third party is maintainable when the property in question is attached before judgment and the decree-holder seeks to satisfy his decree by way of sale of the attached property? 2. Whether the Executing Court has the jurisdiction to adjudicate upon the claim or objection and determine all questions, including questions relating to right, title, or interest in the property attached?
Ratio Decidendi: 1. Order XXI, Rule 58 CPC provides a comprehensive mechanism for adjudication of claims to, or objections to, attachment of property in execution of a decree. The rule mandates that such claims or objections shall be adjudicated upon by the Executing Court and not by a separate suit, except in certain specified circumstances. 2. The Executing Court has the jurisdiction to determine all questions, including questions relating to right, title, or interest in the property attached, and to pass appropriate orders accordingly.
Final Decision: The court allowed the first appeal from order and set aside the impugned order, while dismissing the second appeal. The objector was granted liberty to file an objection before the Executing Court.
( 1 ) THE First Appeal from Order aforesaid has been filed against the judgment and decree dated 24-1-1983 passed by Sri Awadh Behari Shukla, the XIIth additional District Judge, Agra allowing Civil appeal No. 73 of 1982, Bhikam Singh v. Surajmukhi and others and sent back the case to the trial Court with a direction to restore the suit to its original number and after affording opportunity to the parties to lead evidence, to decide the suit by giving its findings on all issues on merits setting aside the order dated 13. 5. 1981 by XVIIIth Munsif, agra in Suit No. 107 of 1978 holding that the suit is barred by the provision of Rule 58 of order XXI CPC on finding of issue No. 6 and rejected the plaintiff of the plaintiff under order VII, Rule 11 CPC.
( 2 ) SECOND Appeal No. 1830 of 1985, aforesaid has been filed against the judgment and decree dated 9-9-1985 passed by Sri o. N. Gupta, IInd Additional Civil Judge, Agra allowing Misc. Appeal No. 34 of 1974 arising out of Execution Case No. 62 of 1976 in original Suit No. 357 of 1974 dismissing the objections under Order XXI, Rule 58 CPC and setting aside the order dated 23-12-1978 allowing the objection filed by Smt. Suraj mukhi under Order XXI, Rules 58 and 64 cpc by Sri Subhash Chandra, Munsif, fatehabad at Agra.
( 3 ) SINCE the property involved in both the abovementioned appeals is the same and the controversy involved in both the cases is more or less the same, I would like to dispose of both the appeals together by a common order. The First Appeal From Order No. 218 of 1983 is the leading case.
( 4 ) THE brief facts of the case are these original Suit No. 357 of 1974 against one mulla was filed in the Court of Munsif, fatehabad, Agra which was decreed on 2. 11. 1976 for Rs. 3, 450 with pendentelite and future interest at the rate of 6% per annum. It appears that before passing of the decree, the plaintiff got the house of Mulla, defendant No. 2 in the suit attached on 27. 8. 1974. On 26. 11. 1976, the plaintiff had filed an application in the Court of Munsif, fatehabad that the decretal amount be realised by auction of the attached house of defendant-mulla. However, Mulla had not filed any objection but defendant No. 1 has filed objection on 26. 5. 1977 under Order XXI, Rule 58 CPC. The said objection was lying pending at the time filing of suit. Mulla had sold the property in dispute in favour of plaintiff bhikam Singh on 22. 12. 1975. It was further alleged by the plaintiff that when he was aware of the sale which was based on fraud and forgery. The defendant No. 2 also denied to refund the money of the sale deed to defendant No. 1. Despite this fact, since the house in dispute was already attached, no sale deed could be executed and the alleged sale was made to avoid the payment of the decretal amount. The plaintiff filed Suit No. 107 of 1978 giving rising to the instant first appeal from order.
( 5 ) THE suit was contested by the defendant no. 1 and a plea was raised that the suit was barred by Order XXI, Rule 58 CPC. The trial Court rejected the plaint as having barred by Order XXI, Rule 58 CPC while the Appellate court allowed the appeal sending the case back to the trial Court for decision against which order the instant first appeal from order has been filed.
( 6 ) THE facts giving rise to the second appeal are these. It appears that in order to satisfy the decree obtained by Bhikam Singh-decree-holder in Suit No. 357 of 1974 against mulla-judgment-debtor, the decree-holder filed an application for execution of the decree. The same was registered as Ex. Case No. 62 of 1976. In the said execution case, Smt. Suraj Mukhi filed an objection under Order xxi, Rules 58 and 64, CPC, the third party. The case of the objector was that the attached house alongwith the Chabutra belongs to her and the decree-holder in a decree against the judgment-debtor Mulla wants to satisfy his decree by way of sale of the said house. According to the objector, she purchased
