B M AISHABI Vs. A YAKUB

JUDGEMENT

(1.) In execution of a decree for money the first respondent decree holder attached a property on 20-10-1982. The appellant, who is a stranger preferred a claim under O.21, R.58, Civil Procedure Code, objecting to the attachment. In the claim it was stated that she knew about the attachment only on 28-10-1983 when she came to the property covered by the attachment. The learned Judge noted that the attachment was made in the presence of the manager of the lodge (which was the subject of attachment) and other persons and it was not possible to believe that she did not get information about it from the manager. Holding that the claim was designedly and unnecessarily delayed the learned Judge dismissed it. The petitioner has brought this appeal challenging the order.

(2.) Counsel for the 3rd respondent raised a preliminary objection contending that as the claim was dismissed for the reasons mentioned in the order without investigation the appeal was incompetent under R.58 of O.21, whatever other remedy might be open to the appellant. This necessitates a consideration of the relevant provisions of O.21 R.58 as amended by Act 104 of 1976. Sub-r.(1) provides that when a claim is preferred to or objection is made to the attachment of any property the court should proceed to adjudicate upon the claim or objection in accordance with the provisions of the rule. It is followed by a proviso in these terms:

(3.) Clause (b) of the proviso to sub-r.(1) lays down that no claim or objection shall be entertained where the Court considers that the claim or objection was designedly or unnecessarily delayed. Sub-r.(2) confers plenary powers upon the Court to determine all the questions relating to the claim or objection. Sub-r.(4) describes the effect of the order "where any claim or objection has been adjudicated upon" by providing that it shall have the same effect and be appealable as a decree. Sub-r.(5) provides for the other situation, where the Court refuses to entertain the claim or objection under the proviso to sub-r.(1). Under the terms of the proviso to sub-r.(1) no claim or objection shall be entertained if it is designedly or unnecessarily delayed, and where it is refused to be entertained the party against whom such an order is made can institute a suit to establish his right under sub-r.(5). Where, on the other hand, there has been an adjudication, sub-r.(4) enacts that the resultant order shall be subject to appeal as if it were a decree. The court below has refused to entertain the appellant's claim or objection under clause (b) of the proviso thus attracting the consequences under sub-r.(5). That being so, the remedy open to the appellant is the remedy prescribed by sub-r.(5), to institute a suit to establish the right which she claims to the property under attachment. The remedy of appeal under sub-r.(4) is reserved only for orders adjudicating upon claims or objections and not to orders of refusal to entertain them under the proviso to sub-r.(1). The position which is clear on the terms of the rule is thus stated under Note 50 to O.21, R.58, in the AIR Commentaries to the Civil Procedure Code, 9th Edition: