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IN THE HIGH COURT OF ALLAHABAD
R. A. Misra, J.
SMT.SAIDA BEGAM - Appellant
Versus
SABIR ALI - Respondents
Appln. 178 Of 1955
Decided On : 03/30/1961
ATTACHMENT - OBJECTION - JURISDICTION - ORDER XXI, RULE 58, C. P. C. - Where a claim or objection is preferred to the attachment of any property in execution of a decree, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit: provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. The Court can release the attached property only if, on evidence adduced by the claimant or the objector, it is proved that he had an interest in or was in possession of the attached property on the date of attachment.
Fact of the Case:
The applicant, Smt. Saida Begam, obtained two decrees against her former husband Thakur Mohammad Umar, Taluqdar of Tipreha estate. Thakur Mohammad Umar died on the 13th October, 1949, and the Deputy Commissioner, Bahraich, assumed superintendence of the estate and other assets of the deceased Thakur Mohammad Umar as manager, Court of Wards. Smt. Saida Begam applied for execution of her decrees and got attached a sum of Rs. 13,682/7/- from the possession of the Deputy Commissioner. The opposite party Sabir Ali filed an objection to the attachment which was registered as Miscellaneous Case No. 72 of 1953. Another execution application was filed by Smt. Saida Begam to recover her dower debt and in this decree she got attached Rs. 7,919/6/- again from the Deputy Commissioner. Shri Sabir Ali filed an objection in this execution case also, which was registered as Miscellaneous Case No. 81 of 1954. The learned Civil Judge, Bahraich, who was executing the above-mentioned decrees, disposed of the objections and vacated the attachment.
Finding of the Court:
The Court held that the learned Civil Judge acted without jurisdiction in vacating the order of attachment in both the execution cases and his order should be set aside. The Court further held that the objections filed by the opposite party failed to satisfy the requirements of Order XXI, Rules 58, 59 and 60, C. P. C. and, therefore, his claim must be repelled. The Court also held that the order passed by the learned Civil Judge vacating the attachment of Rs. 13682/7/- in Execution Case No. 11 of 1953 is, therefore, set aside and the objection of the opposite party Sri Sabir Ali in Miscellaneous Case no. 72 of 1953 is dismissed. The Court further held that the order passed by the learned Judge in the other Execution Case No. 24 of 1954, allowing the objection of the opposite party in Civil Miscellaneous Case No. 81 of 1954 also cannot be sustained and that order must, therefore, be set aside.
Issues: 1. Whether the learned Civil Judge acted without jurisdiction in vacating the order of attachment in both the execution cases? 2. Whether the objections filed by the opposite party failed to satisfy the requirements of Order XXI, Rules 58, 59 and 60, C. P. C.? 3. Whether the order passed by the learned Civil Judge vacating the attachment of Rs. 13682/7/- in Execution Case No. 11 of 1953 is, therefore, set aside and the objection of the opposite party Sri Sabir Ali in Miscellaneous Case no. 72 of 1953 is dismissed? 4. Whether the order passed by the learned Judge in the other Execution Case No. 24 of 1954, allowing the objection of the opposite party in Civil Miscellaneous Case No. 81 of 1954 also cannot be sustained and that order must, therefore, be set aside?
Ratio Decidendi: 1. The Court held that the learned Civil Judge acted without jurisdiction in vacating the order of attachment in both the execution cases because the objections filed by the opposite party failed to satisfy the requirements of Order XXI, Rules 58, 59 and 60, C. P. C. 2. The Court further held that the order passed by the learned Civil Judge vacating the attachment of Rs. 13682/7/- in Execution Case No. 11 of 1953 is, therefore, set aside and the objection of the opposite party Sri Sabir Ali in Miscellaneous Case no. 72 of 1953 is dismissed. 3. The Court also held that the order passed by the learned Judge in the other Execution Case No. 24 of 1954, allowing the objection of the opposite party in Civil Miscellaneous Case No. 81 of 1954 also cannot be sustained and that order must, therefore, be set aside.
Final Decision: The Court set aside the order passed by the learned Civil Judge, Bahraich, dated 2nd May, 1955 vacating the attachment of the amounts in Execution Cases Nos. 11 of 1953 and 24 of 1954. The execution will proceed according to law. The two revision petitions Nos. 112 and 178 of 1955 are allowed with costs.
( 1 ) THE points raised for decision in both these revision petitions are the same. It will, therefore, be convenient to dispose of them by one judgment.
( 2 ) SMT. Saida Begam, wife of Sri Hamid Ali Siddiki, Advocate, Bara Banki, applicant, obtained two decrees against her former husband Thakur Mohammad Umar, Taluqdar of Tipreha estate. One was a decree for her maintenance and the other for her dower debt, due from Thakur mohammad Umar. Thakur Mohammad Umar died on the 13th October, 1949, and according to the decree-holder, superintendence of the estate of Tipreha, as also of the other assets of the deceased Thakur Mohammad Umar, was assumed by the Deputy Commissioner, Bahraich, as manager, Court of Wards.
( 3 ) SMT. Saida Begam applied for execution of her decrees.
( 4 ) IN execution application No. 11 of 1953, which related to her maintenance decree, she got attached a sum of Rs. 13,682/7/- from the- possession of the Deputy Commissioner, Bahraich, out of the assets of the deceased Thakur Mohammad Umar. The opposite party Sabir Ali filed an objection to the attachment which was registered as Miscellaneous Case No. 72 of 1953. The objection petition is a lengthy document and the substance of the objections raised by the opposite-party is that the decree for maintenance was obtained by Smt. Saida Begam collusively that the attachment was fraudulent and was based on misrepresentation of facts, that the objector was the owner of the Tipreha estate and all its assets because his claim in respect of them was dismissed by the trial Court but was eventually decreed by the High Court on 22nd February, 1954, and that the Deputy Commissioner, Bahraich, was holding the Tipreha estate and all its assets as a receiver appointed by the High Court for the benefit of the objector. It was: also urged that the execution application had been filed without bringing the proper legal representatives of the deceased Thakur Mohammad Umar on the record and as such it was bad. The objection mentioned several provisions of the Code of Civil Procedure, e. g. , Section 47, section 144, Section 15l and Order XXI, Rule 58 of the Code of Civil Procedure, under which it was filed and prayers were also made which could appropriately be granted under each, of the above provisions. However, at this stage we are only concerned with the prayer under Order xxi, Rule 58, C. P. C. , for the release of the attached amount.
( 5 ) ANOTHER execution application (No. 24 of 1954) was filed by Smt. Saida Begam on the 25th september, 1954, to recover her dower debt and in this decree she got attached Rs. 7,919/6/again from the Deputy Commissioner, Bahraich. This attachment was effected on 13th november, 1954, and this amount was also attached out of the big sum of money which was with the Deputy Commissioner and out of which Rs. 13,682/7/- had been attached in Execution Case no. 24 of 1954. Shri Sabir Ali filed an objection in this execution case also. This was registered as Miscellaneous Case No. 81 of 1954 and purported to have been filed under Section 47 and Order XXI, Rule 58 of the Code of Civil Procedure. In this objection it was prayed that the execution case be dismissed and that till the decision of the objection, the proceedings in the case be stayed.
( 6 ) THE learned Civil Judge, Bahraich, who was executing the above mentioned decrees, and, who heard the two objections, disposed of them, as also one other objection, with which we are not concerned here by one common judgment. He held that the money attached in both these execution applications was not liable to attachment and he, therefore, vacated the attachment.
( 7 ) AGGRIEVED by the judgment passed by the learned Civil Judge, the applicant Smt. Saida Begam has come up in revision to this Court. Revision Petition No. 112 of 1955 arises out of Execution case No. 11 of 1953 and the connected Miscellaneous Case No. 72 of 1953. The other revision, i. e. , No. 178 of 1955, relates to Execution Cas
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