A claim petition under Order XXI Rule 58 of the Code of Civil Procedure is not maintainable once a property sale is completed.

JUDGMENT

This appeal arises out of the judgment in A.S. No.48 of 2001 on the files of the District Court, Thalassery, by which, the order passed in a claim petition, E.A. No.219 of 2000 in EP No.16 of 1999 in O.S. No.192 of 1997 filed by the 1^st respondent herein, under Order XXI Rule 58 of the Code of Civil Procedure was confirmed.

2. The brief facts necessary for the disposal of the appeal are as follows:

The appellant filed O.S. No.192 of 1997, a suit for recovery of money on 1.10.1997 and obtained an order of attachment of the petition schedule property in the claim petition. On 3.4.1998, the suit was decreed. An Execution Petition was filed on 21.12.1998. The property was sold on 13.03.2000. After obtaining permission from the court, the property was purchased by the appellant/decree holder. The sale was confirmed on 22.5.2000. The 1^st respondent/claim petitioner filed E.A. No.219 of 2000 seeking for an order to lift the attachment over the claim schedule property. The records indicate that the application was moved before the Bench on 24.6.2000 only. The decree holder resisted the claim petition by contending that he has a better title over the property. He further contended that an application under Order XXI Rule 58 of the Code of Civil Procedure is not maintainable inasmuch as the sale was already over. The claim petitioner, on the other hand, contended that in a suit for specific performance as O.S. No.193 of 1997, the property was sold and a registered sale deed was executed on 14.8.1998 through the Additional Sub Court, Thalassery. Therefore, it is pointed out that the claim petitioner has a better title over the property. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the appellant cannot succeed inasmuch as the sale in his favour was not confirmed. Accordingly, the claim petition was allowed, the attachment was lifted, and the sale dated 13.3.2000 was set aside. Aggrieved, the appellant preferred A.S No.48 of 2001 before the District Court, Thalassery, and by judgment and decree dated 31.3.2005 the appeal was dismissed and hence the present appeal.

3. Heard Sri. V.R.K. Kaimal, the learned counsel appearing for the appellant. None appeared for the respondents.

4. Sri. V.R.K. Kaimal, the learned counsel appearing for the appellant, contended that once the sale takes place, the remedy of the claim petitioner is to file an application under Order XXI Rule 97 of the Code of Civil Procedure and obstruct the delivery of the property. When an application under Order XXI Rule 97 of the is preferred, it is incumbent upon the court to adjudicate the respective rights and title of the parties, and it cannot refuse to do so. An application under Order XXI Rule 58 of the is not maintainable when the sale has already taken place. In support of his contention, the learned counsel relied on the decisions of this Court in Pailee vs. Krishna Panicker [ AIR 1971 Kerala 331] and also the decision in Neelakanta Pillai Kunjan Pillai v. Kunju Kunju Janaki [1960 (1) KLR 386].

5. I have considered the submissions raised across the Bar, perused the judgments of the courts below and the records of the case.

6. This Court had admitted the appeal on 17.3.2006 on the substantial questions of law framed in the memorandum of appeal, which reads as under :

i. Whether a claim under Order 21 Rule 58 of C.P.C. can be entertained once the property is sold when proviso (a) to Rule 58 (1) of Order XXI prohibits such an application?

ii. What should be the stage of sale to attract the prohibition for a claim petition provided in proviso (a) of Order XXI