J.KRISHNA Vs. MALIRAM AGARWAL

JUDGEMENT

(1.) This revision petition is filed under Section 115 C.P.C questioning order passed by the lower Court refusing to send admitted signatures and disputed signatures in the documents to an expert for the purpose of comparison and report. It is stated that the respondents 1 to 8 after obtaining decree for possession of the suit property in O.S. No.682 of 1982, filed E.P. No.72 of 2007 in the lower Court for delivery of possession against the respondents 9 to 17 who are the judgment debtors and that in that execution petition, the petitioner filed a claim petition (?) by way of E.A. No.142 of 2011 under Order XXI Rule 97 C.P.C claiming himself to be tenant in the decree schedule property under the deceased 1st J.Dr, G.Kishan Rao and that during the course of enquiry in that claim petition, the claim petitioner filed the present E.A. No.375 of 2012 under Section 45 of the Evidence Act, 1872 to send the documents to expert for comparison of signatures and report.

(2.) When this Court questioned the petitioner's counsel as to how a claim petition is maintainable under Order XXI Rule 97 C.P.C in delivery proceedings, the revision petitioner's counsel raised objection stating that this Court may not go into merits of the case in this revision petition as subject matter of this revision petition pertains only to sending disputed documents and admitted documents to an expert for comparison of signatures. It may be noted that this Court is not making any adjudication on respective rights of the parties in the suit property, but this Court's question relates to only the procedure i.e., regularity or irregularity of the procedure in entertaining a claim petition in execution proceedings relating to decree for delivery of possession.

(3.) It is only under Order XXI Rule 58 C.P.C an executing Court is empowered to entertain claims preferred to or objections made to attachment of any property in execution of a money decree on the ground that such property is not liable to such attachment. In execution proceedings relating to decree for delivery of possession of immovable property, there is no element of attachment of any property involved at any stage and it follows that no question of making adjudication of claims or objections to attachment of such property arises. When there is no attachment at all, there is no question of adjudication of claims or objections to the attachment.