KALYANI Vs. SEKAR

JUDGEMENT

(1.) The 3rd party claimants are the appellants before this Court, challenging the dismissal of their petition filed invoking the provisions of Order 21 Rule 58 of the CPC. The brief facts of the case are as follows:-

(2.) The 1st respondent herein had borrowed a sum of Rs.25,500.00 from the 2nd respondent on 10/1/1999, since the amounts were not repaid the 2nd respondent had initiated a suit for recovery of money against the 1st respondent in O.S.No.46 of 2001 on the file of the Principal District Munsif, Thirukoilur. The suit was decreed on 26/8/2001 for a sum of Rs.26,700.00 with interest at 9% on Rs.22,500.00. Thereafter on 11/2/2002 the 2nd respondent had filed E.P.No.75 of 2002 for attaching the property belonging to the Judgement debtor and to bring it for sale. On 9/4/2002 the petition mentioned property was attached. The properties were brought to sale and on 28/8/2003 the decree holder had participated in the bid and purchased the property in auction. A day prior to that the claimants had filed E.A.No.463/2003 invoking the provisions of Order 21 Rule 58 stating that the property in question was a joint family property in which the judgement debtor/1st respondent had only one share. The remaining share belong to the petitioners/ appellants herein. They would in their claim petition state that they became aware about the auction purchase only on 25/8/2003 and immediately steps have been taken to initiate the proceedings.

(3.) The 2nd respondent had filed a counter in which they had admitted that the property were ancestral property but they would contend that the money was borrowed by the 1st respondent only as a Karta of the family for meeting the family needs. The claim petition was ultimately dismissed by the Principal District Munsif, Thirukoilur by holding that an application under Order 21 Rule 58 was not the remedy envisaged. Challenging the same the appellants herein had filed CMA.No.6/2004 on the file of the Principal Subordinate Judge, Villupuram.