DORASWAMI REDDY Vs. GOWRI SENUR

JUDGEMENT

(1.) This revision petition, at the instance of the decree-holder, is against the order holding that the application under Order 21 Rule 58 CPC is maintainable.

(2.) In the course of the execution proceedings the sale was confirmed on 19-9-1983. The respodents herein filed a claim petition on 26-9-1983. The court below relying upon the decision in M/s. Magunta Muting Company vs. M K. Reddy, 1983(1) APLJ 2671983 (1) ALT 349. held that the application under order 21 Rule 58 CPC is maintainable though the sale was held prior to the filing of the application.

(3.) The learned counsel for the petitioner contends that the application under Order 21 Rule 58 CPC is not maintainable after the sale is held in view of the mandatory terms of proviso to Order 21 Rule 58 CPC. The learned counsel for the respondents seeking to sustain the judgment of the court below relied upon the observations of this court in 1983(1) APLJ 267. Order 21 Rule 58 C.P.C. is as follows : "58. Adjudication of claims to. or objections to attachment of property. (1) Where any claim is preferred to or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained : Provided that no such claim or objection shall be entertained (a) where, before the claim is preferred or objection is made, the property attached has already been sold ; or (b) where the court considers that the claim or objection was designedly or unnecessarily delayed. Order 21 Rule 59 empowering the court to grant sale pending the claim petition is as follows :