LAW POINT
Scope of investigation – Court cannot reject a claim without adjudication merely on the ground that question of title or possession is doubtful or complicated in nature.

ORDER

Javed Iqbal Wani, J.—The instant revision petition is directed against order dated 24.9.2018 passed by the court of Principal District Judge, Jammu.

2. Before adverting to the grounds of challenge urged in the instant petition by the petitioner, a brief background of the case is delineated hereunder:

i) A suit for recovery of Rs.73,22,000/- under Order 37 CPC came to be instituted by the predecessor-in-interest of respondent 1 namely Shayam Puri against the predecessor-in-interest of respondents 2 to 4 herein being file No. 101/suit before the court of Principal District Judge, Jammu (hereinafter the trial court).

ii) In terms of order dated 30.1.2009, during the pendency of the suit, an application came to be filed by plaintiffs for attaching the property of the defendants before judgment while apprehending that the defendants in order to defeat the suit of the plaintiffs are hellbent to alienate and dispose of the property comprising of Cybernetic School, its buildings and land. The said order came to be passed taking into account the contention of the plaintiffs as also a copy of the agreement to sell relating to the said property purported to have been entered into between the defendant with one Manmohan Singh and Mir Showkat Hussain. The said order dated 30.1.2009 had been passed subject to the condition that if the defendant furnishes a surety to the extent of the suit amount and the costs, the property will be released.

iii) The suit came to be decreed by the trial court in terms of judgment and decree dated 8.8.2017.

iv) An execution petition came to be filed on 21.11.2017 by the decree holder for execution of decree before the executing court.

v) An application came to be filed on 14.8.2018 by the petitioner herein as an objector in terms of Order 21 Rule 58 CPC (for short O21 r58) contending therein that he has purchased the property in question as a bona fide purchaser in terms of sale deeds dated 22.3.2012 and 15.6.2012 and as such had been in possession of the said property. The objector prayed for recalling of order dated 3.5.2018 passed by the executing court whereby warrant of attachment of the property in question had been issued.

vi) The judgment debtor also had filed an application on 11.9.2018 for setting aside judgment and decree, and for staying the execution contending in the said application that she is in possession of the property and is running a school therein the said property under the name and style of “Cybernetic Secondary School” spread over two acres of land with a built-up area of 4038 sqm and 4055 sqm area of playground.

vii) Both the applications filed by the objector petitioner herein as also the judgment debtor came to be dismissed by the executing court in terms of orders dated 24.9.2018 and 19.12.2018 respectively. While the defendant judgment debtor did not challenge order dated 19.12.2018 and same assumed finality, the objector petitioner herein challenged order dated 24.9.2018 in the instant petition.

3. The impugned order is being challenged by the objector petitioner herein inter alia on the grounds that the same has been passed erroneously and is unsustainable having been passed without taking into account provisions of Order 38 Rule 21 CPC. The impugned order is further stated to have been passed without application of mind and in a slipshod and cryptic manner. The impugned order is also stated to have been passed without disclosing the effect of initial order of attachment before judgment passed by the court on 30.1.2009 which too is stated to have been passed in violation of Order 38 Rule 5 and 7 read with Order 21 Rule 54 CPC. The trial court is also stated to have not followed further subsequent procedure after passing of the attachment order dated 30.1.2009 as provided under Order 21 Rule 54 CPC and that the decree holder cannot derive any interest or right over the property in pursuance of the said attachment order dated 30.1.2009. It is further urged in the gr