PADMANABHAN Vs. SHRIRAM CHITS AND INVESTMENTS P LTD

JUDGEMENT

(1.) This appeal under S.5 of the Kerala High Court Act (for short "the Act") is against the judgment of a learned Single Judge in E.F.A. No. 8 of 1995. The Execution First Appeal itself was against an order passed in E.A. No. 23 of 1995 in E.P.No. 59 Of 1990 on the file of the Sub Court, Palakkad. As per the order passed in E.A. No. 23 of 1995, the learned Sub Judge has declined to entertain the claim filed under O.21 R.58 CPC reserving the right of the petitioners in the E.A. to initiate independent action to establish their right in the property. Obviously, the learned Judge seems to have exercised his power under clause (b) of the proviso to O.21 R.58 CPC and dismissed the E.A. as unnecessarily delayed. In the appeal the learned Single Judge has confirmed the order making it clear that the disposal is under clause (b) of the proviso to R.58 and expressly reserving the right of the appellants to file a regular suit to establish the right claimed as provided under O.21 R.58(c) CPC.

(2.) At the time when the appeal came up for admission before us in the usual course, we heard the learned counsel for the appellants Shri. S. Ananthakrishnan on the question of maintainability of the appeal as we entertained doubt about it. For the appellants it was submitted that the appeal is maintainable specifically under clause (ii) of S.5 of the Act which is as under:

(3.) While arguing for the maintainability of the appeal it was vehemently submitted that even though the appellants have approached the execution court for necessary reliefs, as far as they are concerned, the E.A. is an original proceeding inviting an adjudication into the claim by the court as a court of first instance and as such the order passed in the E.A. must be treated as one made in exercise of original jurisdiction of the sub court. Learned counsel pointed out that this is especially so in view of the amended provisions contained in O.21 R.58 CPC whereby the court which executes the decree has been conferred with exclusive and comprehensive jurisdiction to settle all questions including the question regarding title to the property attached, in the execution proceedings itself. The provision in O.21 R.58(4) CPC which states that where any claim or objection has been adjudicated upon under the rule, the order made thereon shall have same force and be subject to the same conditions as to appeal or otherwise as if it were a decree, was also relied upon in support of the submission made by the learned counsel.