E VENKATESWARA RAO Vs. S NAGABHUSHANAM

JUDGEMENT

(1.) This revision is filed against the order rejecting the application E.A.No. 478 of 4999 in E.P.No. 222 of 1999 purporting to have been filed under Order 21 Rule 58 CPC raising objection in respect of the properties attached. The petitioner claims to be the owner of the properties, which are attached includes movables like Fridge, Almairah, Television, Cooler and two ceiling fans. He is the husband of the judgment-debtor against whom the decreeholder obtained decree for recovery of money on the basis of promissory note. The case of the petitioner is that the promissory note in question is much prior to their marriage and all the properties which are attached were purchased out of his own earnings and not by his wife, though he is her husband. The Court below dismissed the impugned application with a finding that "I am inclined to believe that the petitioner has failed to prove that he was given T.V. and cooler by his employer and the claim-petitioner has not filed any proof to prove that the almairah and fans were purchased with his money."

(2.) It is the case of the petitioner that though his application is filed under Order 21 Rule 58 CPC in the nature of claim petition raising objection to the attachment in question, which calls for an enquiry as contemplated under sub-rule (2) of Rule 58 of Order 21 CPC, which says that all questions (including questions relating to right, title or interest in the property attached) arising between the parties" to a proceeding or their representatives under this Rule and relevant to the adjudication of the claim or objection shall be determined by the Court dealing with the claim or objection and not by a separate suit. Thus, enquiry under this application has virtually been made as that of a suit. In view of such change brought in by law, it necessitates an enquiry to be conducted by the Court, without which neither the parties can have any opportunity to substantiate their claim. Admittedly in this case no enquiry was conducted and neither of the parties have been given any opportunity to prove their claim. In that view of the matter, the order under revision is set aside.

(3.) The revision is, therefore, allowed. The lower Court is directed to dispose of the impugned application afresh after conducting enquiry and giving an opportunity of being heard to both the parties, within a period of three months from the date of receipt of a copy of this order. It is needless to observe that the articles under attachment be kept in the custody of the Court below under lock and seal and if the respondent wants the same to shift to any other place, the same may also be under the control of the Court below under lock and seal and same shall continue till dispose of the application. No costs.