SAJU Vs. RAJAN

JUDGEMENT

(1.) PETITIONERS in E.A.No.908 of 2009 in E.P.No.235 of 2005 in O.S.No.418 of 2001 of the court of learned Additional Munsiff-I, Thiruvananthapuram is the petitioner before me challenging dismissal of E.A.No.908 of 2009 as not maintainable. Respondent No.1 obtained a decree for money against respondent No.2, mother of petitioners and in execution of that decree property allegedly belonging to respondent No.2 was attached, brought up for sale and sold on 05-01-2006 and sale certificate also was issued to respondent No.1. Respondent No.1 filed E.A.No.778 pf 2009 for delivery of the property. At that stage, petitioners filed E.A.No.908 of 2009 for stay of sale proceeding claiming that they also got right over the property sold in auction in that, the said property originally belonged to their father and on his death it devolved on petitioners and respondent No.2. Learned Munsiff dismissed E.A.No.908 of 2009 as not maintainable for the reason that the property has already been sold before claim petition was preferred. That order is under challenge in this revision petition. Learned counsel contends that E.A.No.908 of 2009 is an application filed under Order XXI Rule 97 of the Code of Civil Procedure (for short, "the Code").

(2.) IT is not disputed before me that E.A.No.908 of 2009 was filed as if it is a claim petition in respect of property attached (and sold). Prayer was to stay the sale proceeding. As per proviso to Rule 58(1) of Order XXI of the Code, no claim or objection shall be entertained if the property attached has already been sold. Admittedly, property was sold on 05-01-2006 and the application was filed only in the year 2009. Hence application in the form of a claim petition under Order XXI Rule 58 of the Code was not entertainable. When a claim petition is dismissed as not entertained, remedy of petitioners is under Rule 58(5) of Order 21 of the Code. Petitioners admit that they have filed O.S.No.62 of 2010 to establish the right claimed by them over the property attached and sold in auction. On hearing learned counsel and going through the order under challenge I do not find any illegality in the order of learned Munsiff. Revision petition is therefore dismissed leaving petitioners to whatever appropriate remedy they have as per law in respect of the claim they have made.