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NANDIPATI TATI REDDI V/S SYED MEERA HUSSAINI & OTHERS, decided on Friday, October 6, 1978.
[ In the High Court of Andhra Pradesh, Civil Revn. Petn. No. 4129 of 1977. ] 06/10/1978
Judge(s) : NARASINGA RAO
Advocate(s) : M.B. Rama Sarma. R1 & R2, Mohd. Imtiaz.
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  "1979 AIR (AP) 70"  ==   "1979 (1) ALT 182"  ==   "1978 (2) ALT 521"  ==   ""  







    Narasinga Rao J.1. This revision petition by the decree-holder is directed against the order of the District Munsif Gudivada whereby he overruled the two objections raised by the decree-holder with regard to the maintainability of a claim petition and the nature of enquiry to be conducted into the said claim.2. The revision petitioner obtained a decree in O.S. No. 110/1969 against the 2nd respondent and in execution of the decree the immovable properties of the judgement-debtor were attached in the month of Feb. 1976 18th July 1977 was the date notified for sale of the properties. The 1st respondent herein filed a claim petition on the said date objecting to the attachment. He also filed a petition for postponement of the sale but it was dismissed by the learned District Munsif and the sale was conducted as scheduled. Notice of the claim petition was ordered to the decree-holder and the judgement-debtor. The 3rd respondent is the auction-purchaser.3. The decree-holder opposed the claim petition. When the claim petition came up for enquiry and the claimant sought to lead oral evidence two objections were raised that as per the provisions of Order 21 Rule 58 of the Civil Procedure Code as they stood prior to the amendment the enquiry need be a summary one and than an elaborate enquiry is not permissible. The other ground was that in view of the sale the claim petition under Order 21 Rule 58 Civil Procedure Code can no more be investigated. He sought a decision on these two objections. As regards the maintainability he held that as the claim petition was filed subsequent to the enforcement of the amendment to the Civil Procedure Code the provisions of Order 21 Rule 58 Civil Procedure Code as amended would apply and that all questions have to be determined by the Court in the claim itself and not by a separate suit and therefore the enquiry need not be a summary one. On the second contention he held that though a claim petition was filed before the sale actually took place and though postponement of the sale was refused yet the claim petition can be investigated into after the sale. This he held in the absence of any direct ruling of this Court.4. At the outset it can be said that the first question does not present any difficulty. The view of the learned District Munsif as to the nature of enquiry not being a summary one cannot be supported Under Order 21 Rule 58(2) as amended by Act 104 of 1976; which came into force with effect from 1-2-1977 all questions (including questions relating to right title or interest in the property attached) arising between the parties to a proceeding and relevant to the adjudication of the claim or objection shall be determined by the Court dealing with the claim or objection and not by a separate suit. Thus the amended Code has deleted. Order 21 Rule 63 Civil Procedure Code which provided that any order made in a claim petition under Order 21 Rule 58 Civil Procedure Code is subject to a suit to be brought by the aggrieved party. Thus by its very nature the scope of enquiry as contemplated by Order 21 Rule 58 Civil Procedure Code before amendment was a summary one. The question is whether the provisions of Order 21 Rule 58 Civil Procedure Code as they stood prior to this amendment would apply to the present proceedings.5. The claim petition has come to be preferred on 18-7-1977. But it is not in dispute that the attachment of the properties in question was made as early as in Feb. 1976. Order 21 Rule 58 Civil Procedure Code stands amended by Section 72 of the Amendment Act of 1976 Section 97(1) of the Amendment Act of 1976 relating to Repeals and Savings reads as follows :-The provisions of Rule 31 32 48(a) 57 to 59 90 and 97 to 103 of Order 21 of the First Schedule as amended or as the case may be substituted or inserted by Section 72 of this Act shall not apply or affect-(i) any attachment subsisting immediately before the commencement of the said Section 72......Thus with regard to attachment subsisting before the enforcement of the amended provisions the old provisions of Order 21 Rule 58 Civil Procedure Code would continue to apply. Needless to repeat that the scope of enquiry under the provisions of Order 21 Rule 58 Civil Procedure Code prior to this amendment was a summary one. Thus the view of the learned District Munsif that the enquiry was to be as if it is a suit cannot be supported.6. The next question urged is that the investigation into the claim petition need not be continued once a sale has taken place. The answer to this question is of course not free from difficulty. The trial Court noted that the claim petition in this case was preferred on the day when the property was notified for sale.7. The claimant has also sought the postponement of the sale which was however refused with the result that while on entertaining the claim petition notice was ordered to the respondents therein the sale was allowed to take place. This clearly indicates that the objection to attachment was raised before sale. Cases where the objection to the attachment by way of claim petition was raised after the sale stand on a different footing from an objection which has been raised before the sale takes place I have already held above that it is the unamended provisions of Order 21 Rule 58(2) (as it stood before amendment) (sic) (omission) reads as follows :-Where the property to which the claim or objection applies has been advertised for sale the court ordering the sale may postpone it pending the investigation of the claim or objection.8. What was contended by Mr. M.B. Ramasarma the learned counsel for the petitioner is that once a claim petition is filed it was imperative to postpone the sale. But where it is not so postponed and the sale had taken place the rights of the auction-purchaser come into existence with the result that it cannot be said that the attachment still subsists or that the investigation into the objection to the attachment can still proceed. If the intendment of the Legislature was that where a claim petition was made before the sale takes place and such a sale cannot be effected pending the claim petition the above sub-rule would have laid down that the court 'shall' postpone the sale. It is true that the intendment of Rule 60 indicates that the claim petition should be disposed of before the rights of a third party i.e. the auction-purchaser are affected. It may not be out of place to refer to the amended provisions to construe the Legislative intention Rule 58(1)(a) of Order 21 of the Civil Procedure Code as amended lays down that no claim or objection shall be entertained after the sale of the property attached. But in the present case the objection has come to be made before the sale took place. The amended Rule 59 Order 21 Civil Procedure Code reads as follows :59. Where before the claim was preferred or the objection was made the property attached had already been advertised for sale the Court may.(a) if the property is movable make an order postponing the sale pending the adjudication of the claim or objection or(b) if the property is immovable make an order that pending the adjudication of the claim or objection the property shall not be sold or that pending such adjudication the property may be sold but the sale shall not be confirmed.9. Thus even under the amended provisions it is open to the Court to order the sale. But what is to be withheld is the confirmation of the sale. From the later provisions also it is evident that the investigation into the claim petition need not be dropped even though the sale had taken place. It is difficult to infer that where a sale takes place the investigation into the claim petition even though filed earlier to the sale has to be dropped. A few decisions which appear to have a bearing on this question are referred to hereafter.10. In Jagannadham v. Pydayya AIR 1931 Madras 782 it is held that where a claim under Order 21 Rule 58 is put in after the property has been knocked down in Court auction the consideration or investigation of such claim is not in-fructuous and the Execution Court is competent to hear the claim. What is contended by Mr. Ramasarma is that a later decision reported in Channanore Bank Ltd. v. Madhavi AIR 1942 Madras 41 (FB) has taken a different view. This later decision considered the question as to what would amount to an order within the meaning of Order 21 Rule 58 so as to hold that the suit challenging the order need be brought within one year as laid down by Order 21 Rule 63 Civil Procedure Code. In this case a claim petition was not pressed and it was dismissed. The question was whether such an order is adverse and whether a suit to set aside such an order was to be brought within one year from the date of the order. The ratio of this ruling is as follows :-Therefore where the order petition not pressed it is dismissed is passed on a petition which falls within Rule 58 and the petitioner has not sought permission to withdraw it without prejudice to his rights it is obviously an order which is against him and required him to file a suit within a year from the date of the order if he wishes to reopen the matter.11. What Mr. Ramasarma the learned counsel for the petitioner strenuously contended is that the argument pressed by him is supported by a decision of Bombay High Court reported in Ningauda Girimallappa v. Nabisaheb Abalal AIR 1942 Born 263. That was a case which held what is an order within the meaning of Order 21 Rule 58 that entails the bringing of a suit to set aside that order within one year as laid down by Order 21 Rule 63 Civil Procedure Code. The learned single Judge observed that if on a claim petition whether preferred either before or after the sale an order has been passed such an order is not one falling under Rule 58 so as to hold (sic) such order is to be got set aside within one year by way of a suit as laid down by Rule 63. The relevant passage is to the following effect.But where the order under Order 21 Rule 58 is passed after the sale has been held and proceeds on the ground that the application under Order 21 Rule 58 is not tenable because the attachment has come to an end or that the claim cannot be adjudicated upon after the sale the provisions of Rule 63 would have no application. In such a case the question whether the application under Order 21 Rule 58 was made before or after the sale is immaterial inasmuch as the material date is not the date when the application was filed but the date when the Court passed an order on the application. Order 21 Rule 58(2) read with Order 21 Rule 60 indicates that the application under Order 21 Rule 58 must be decided before sale. It is true that after the sale is held it is liable to be set aside on several grounds within 30 days at the expiration of which it becomes absolute but the rights under the sale come into existence at its date and not when it is made absolute and the claim under Order 21 Rule 58 must be disposed of before the right of the auction purchaser begins from the date of the sale. Consequently where an order is passed by the executing Court even within one month after the sale actually took place to the effect that the court had no jurisdiction to pass any order on the merits of the claim petition and dismiss it on that ground it does not fall under Order 21 Rule 63.12. To say that an order passed on a claim petition subsequent to the sale (though the claim petition itself is preferred before the sale) does not fall under Order 21 Rule 58 Civil Procedure Code is altogether different from the question whether the investigation into the claim can proceed even after the sale. In Satyanarayana v. Somasundaram (1970) 2 Andh LT 277 a Division Bench of this Court had to consider a case where a claim petition was preferred after the sale but before confirmation. It is however not necessary to reiterate the consequences of confirmation of sale as such a confirmation relates back to the date when the auction purchaser purchases the property in the Court sale though the confirmation of it takes place later. The Division Bench of this Court held that an objection to the attachment does not lie under Order 21 Rule 58 when once the sale is held. That case is therefore different from the facts on hand.13. In Nirode Ranjan Dey v. Union of India AIR 1974 Gauhati 14 Goswami C.J. (as he then was) held that objections to attachment cannot be entertained subsequent to execution sale. That was also a case where the claim petition was received after the sale but before the confirmation of the sale.14. In the light of the Bombay ruling referred to above all that can be said is that where a claim petition is preferred before the sale but the order on the claim petition is rendered after the sale the order of the Court is not one falling under Order 21 Rule 58 Civil Procedure Code which requires to be set aside by the aggrieved party by filing a suit within one year therefrom. But even in a case where the claim petition is preferred earlier to the sale but the sale takes place pending the petition no authority lays down that investigation has to be dropped. Therefore the contention that the investigation into the claim petition need not be proceeded with after the sale takes place cannot be accepted. The result of it is that the investigation into the claim petition has to proceed and the nature of enquiry should be as laid down by O.21 Rule 58 and 59 of the C. P.C prior to the amendment.15. I may however note that for purposes of this case it is not necessary to consider the question whether the remedy of a suit contemplated by Order 21 Rule 63 of the unamended Code would be available with regard to any order passed in this claim petition or what the remedy would be against an order on the claim petition. Such a consideration would amount to enlarging the scope of this revision petition and it is also premature.16. The revision petition is therefore ordered holding that the enquiry into the claim petition is to proceed but under the provisions of Order 21 Rule 58 and 59 of the Civil Procedure Code prior to the amendment to the extent they are saved. There will however be no order as to costs.Order accordingly.