SIDRAMAPPA RACHAPPA Vs. SHANKARALINGAPPA

JUDGEMENT

(1.) When third party's claim to or objections to attachment of any property attached, after the coming into force of the Code of Civil Procedure (Amendment) Act, 1976, to be referred to as the Amendment Act, in execution of a decree on the ground tlvrt such property is not liable to such attachment, is adjudicated upon by the Executing Court under Rule 58 of Order XXI of the CPC, 1908, as amended by the Amendment Act to be referred to as the Amended Code, is the order of adjudication so made by the Executing Court a decree as would enable the aggrieved party to question the same in an appeal a provided for in the same Rule of the Amended Code? is a common question of law which arises for my decision in these three revision petitions, for, they become unmaintainable if my decision on the question is in the affirmative. The undisputed facts which have necessitated a decision on the sall question are briefly these : One Shankaralingappa Veerappa Bilagi, the respondent in CRPs. 1940 and 1941 of 1977 and the petitioner in CRP.1271 of 1978 having obtained a money decree in OS.93 of 1973 on the file of the Court of the Munsiff at Muddebihal, desiring to execute the, decree, filed Ex. Case No.10 of 1977 on the file of the same Court seeking attachment and sale of certain, properties on the plea that those properties belonged to the judgment-debtor. The Court, in turn, having ordered attachment of the said properties, the order of attachment was given effect to on 17-2-1977. The petitionei in C.R.P. 1940 of 1977, since filed an application under Rule 58 of order XXI Of the Amended Code objecting to the attachment, the application was registered by the Court as Mis. Case No.7 of 1977 and adjudicated upon. Simlarly, the application made by the petitioner in C.R.P. 1941 of 1977 was registered by the Court as Mis. Case No.9 of 1977 and adjudicated upon. So also, another similar application mad,e by the respondent in C.R.P.1271 of 1978 was registered as Misc. Case,No.11 of 1977 and adjudicated upon. By separate orders made by the Court in the said three decree-holder at whole instance all the properties concerned in the Miscelwas allowed. Aggrieved by the said orders the three Revision Petitions are filed by the unsuccessful parties. While the petitionerr. in C.R.P.Nos. 1940 and 1941 of 1977 are the objectors who objected to the attachment, it is significant to note that the petitioner in C.R.P. 1271 of 1978 is the decree-holder at whose instance all the properties concerned in the Miscellaneous Cases before Court below were attached. What becomes apparent from the conduct of the said objectors who objected to the attachment and the decree-holder in filing the revision petitions under consideration is that all of them have proceeded under the impression that no appeal was maintainable against the orders in question as was admittedly the legal position under the Code of Civil Procedure, 1908, as it stood prior to its amendment under the Amendment Act, to be referred to as the Old Code. This is how the question formulated by me at the outset has arisen for my decision. As my decision on the said question ha,s to necessarily depend upon the view I may take on the change in the legal position that has bee brought about by coming into force of the Amendment Act on 1-2-1977, I propose to set out the provisions of the old Code, the Amendment Act and the Amended Code in so far as they may become relevant for the purpose of the present discussion. Rules 58 to 63 of Order XXI of the old Code which dealt with investigation of claims and objections relating to properties attached in execution of a decree read thus: 58 Investigation of claims to, and objections to attachment of attached property.-

(2.) Evidence to be adduced by claimant.-The claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of the property attached.

(3.) Release of property from attachment.-Where upon the said investigation the Court is satisfied that for the reason stated in the claim or objection such property was not when attached, in the possession of the judgment debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the judgment-debtor at such time, it was so in bis post ression, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Court shall make an order releasing the property wholly or to such extent as it. thinks fit, from attachment.