SUKANYA Vs. CANARA BANK SAGAR BRANCH

JUDGEMENT

(1.) IN this appeal filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), the appellant has called in question the correctness of the order dated 15th April, 1997 made in execution Case No. 228 of 1994 by the Court of Civil Judge and Additional Chief Judicial Magistrate, Sagar, rejecting the application filed by her under Order 21, Rule 58 of the Code.

(2.) FACTS, which are not in serious dispute, may briefly be stated as hereunder:

(3.) MS. Geetha Menon, learned Counsel appearing for the appellant, submitted that the entire approach made by the learned Civil Judge that the application filed by the appellant objecting to the sale of the suit schedule property, in final decree proceedings is not maintainable, is erroneous in law. She pointed out that though the application filed by the appellant was not maintainable under Order 21, Rule 58 of the code, since the property in respect of which the appellant has acquired title by means of registered sale deed dated 22nd September, 1989, was brought to sale by the first respondent-Bank pursuant to the decree obtained by it against the second respondent-judgment debtor, the learned Civil Judge ought to have held that the Court has inherent power to examine the objections raised by the appellant on an enquiry being held in that behalf. It is her submission that when Rule 58 of order 21 of the Code provides for the objections being raised to the attachment of any property made in execution of the decree on the ground that such property is not liable to be attached; and when such an objection being raised, a duty is cast on the Court to adjudicate upon the objections raised for attachment of the property; and similarly when rule 97 of Order 21 of the Code, provides for resistance or obstruction by any person for decree for possession being executed or for sale of any property in execution of decree; and on such resistance or obstruction being placed, the decree-holder could make an application to the Court complaining of such resistance or obstruction; and when such an application is made, the Court is required to adjudicate upon the application filed seeking for removal of obstruction or resistance, on the same analogy, it must be held that when the right of the owner of a property is threatened and the property is brought to sale, it must be held that such a person has a right to move the Court seeking adjudication of his rights to the property, notwithstanding that a decree for sale of the property had been obtained, provided the person, who raises such an obstruction or who resists for the sale of the property, was not a party to the decree; and the Court has a duty to conduct an enquiry and adjudicate upon the rights of the parties in the light of the objections raised. She further submitted that when the learned Civil Judge has taken the view that the application filed by the appellant raising objection to sale of the suit schedule property was not maintainable, he has seriously erred in law in proceeding to record a finding that it is not permissible for the appellant to raise obstruction with regard to the sale of the suit schedule property on the ground that the same was mortgaged in favour of the first respondent. She also submitted that the learned Judge has seriously erred in proceeding to pass the order without conducting an enquiry with regard to the objections raised by the appellant against the sale of the suit schedule property.