K VENKARAYAPPA Vs. ELLEN INDUSTRIES COIMBATORE

JUDGEMENT

(1.) The appellant is an objector. He filed an application under S.21 R. 58, C.P.C. claiming that the plaint schedule property was purchased benami in the name of the wife of the 2nd respondent and the sale proceeds went from the joint family assets and therefore he has got half-share in the plaint schedule property. The lower court dismissed the application on the ground that on an earlier occasion the wife of the 2nd respondent viz. Laxmamma filed E.A. No. 331 of 1974 and that she agreed for payment of the decretal amount and sought one year time. It was granted. But the debt was not discharged. Thereafter E.P. No. 3 of 1974 was filed claiming her rights in the same in E.A. No. 188 of 1978. That was dismissed. Thereafter she filed O.S. No. 226 of 1978 and sought to obtain an injunction. In I.A. No. 381 of 1978 restraining the 1st respondent to proceed with the execution of the decree in I. P 3 of 1977 that injunction was refused. It is also stated that the petitioner did not adduce any evidence whatsoever to show that the sale consideration went from the joint family funds to purchase the property, the subject of the attachment. Therefore, it is held that it is not a joint family property and therefore the petitioner cannot have any share in the property. On those grounds it was dismissed.

(2.) In this appeal Mr. Maheswara Reddy, the learned counsel appearing for Mr. Bali Reddy, has contended that the approach of the lower court is clearly illegal. There are two courses open to the Courts below on an application filed under O.21, R.58, C.P.C. viz. To dismiss the application in limine on the ground that the property, the subject of attachment was already sold out or the application was designedly or unnecessarily filed only to delay the execution. These are not the grounds on which the lower court rejected the application. When the Court below did not take recourse to the above procedure, the only course left was to make an enquiry on merits. If the application is dismissed on the ground referred to earlier, there is a right of suit given to the claimant under sub-rule (5) of R.58 of O.21, C.P.C. and if the order is made on merits, the right of suit has been excluded by operation of sub-rule (4) of R.58. a reading thereof would manifest that holding an enquiry is mandatory. The lower Court did not conduct any enquiry in this regard and straightway dismissed the application on merits. This contention was resisted by the earned counsel on the other side stating that the application is nothing but an attempt designedly made to drag on the proceedings and the order must be construed to be one made under proviso (b) to R.58 (1) of O.21, C.P.C. In order to appreciate the contentions, the question that arises for consideration is, what is the correct procedure to be adopted in an application to raise the attachment.

(3.) Order 21, R.58, C.P.C. gives a statutory and substantial right to a person to object to the attachment of any property in execution of a decree. When an application, in exercise thereof, has been filed, clauses (a) and (b) of proviso to sub-rule (1) of R.58 clothes Court with power to dismiss such an application in limine, or (a) that the property attached had already been sold out; or (b) it was intended to protract the proceedings and in that process the application was designedly made or unnecessarily has been filed. If the Court exercises that power, the applicant is relegated to vindicate his rights by way of a regular suit as contemplated under sub-rule (5) of R.58 of O. 21 thereof. If the Court did not exercise he power at its inception in terms of the above provisions, then sub-rule (2) thereof enjoins the Court that all questions including the question relating the right, title or interest in the property attached shall be determined by that Court dealing with the claim or objection and not by a separate suit. Thereby, the legislature intended that it is a mandatory duty cast on the court to hold an enquiry. The enquiry thereby posits that an opportunity to be given to the parties to adduce all necessary evidence in support of the claim or to resist such a claim by the opposite party and thereafter to give finality to the objection by that Court, subject to a right of appeal provided under sub-rule (4) thereof treating the order thereunder as a decree. The order thus becomes conclusive. Thereby the Legislature has manifested that holding an enquiry in adjudicating the right, title and interest of the objector in dealing with the claim or objection is mandatory and the order passed thereon shall be conclusive. Broached from this perspective, when we gleaned through the order passed, it must but be held that the lower Court passed the order under sub-rule (2) of R.58 of O.21, without holding an enquiry and without giving an opportunity to the Party. It straightway passed the order on merits. Therefore the order is per se contrary to the mandatory language and scheme of the Code; thereby it is not only in excess of the jurisdiction but also in vitiated by material irregularity in exercise of its jurisdiction. The contention of the learned counsel for the respondent that it could be given any credence for the reason that no merely the Court below did not express in terms thereof but a perusal of the order also indicates that it was passed on merits attracting sub-rule (2) of R.58 of O.21. Therefore the order cannot be brought with clause (b) of proviso to sub-rule (1) of R.58 of O.21, CPC. The order of the lower Court is accordingly set aside and the appeal is allowed. The lower Court is directed to hold an enquiry after giving adequate opportunity to both parties and dispose of the same according to law. In view of the facts and circumstances, there shall be no order as to costs.