SHRICHAND HEERALAL VAISHYA Vs. SANTOSH KUMAR DEVI PRASAD

JUDGEMENT

(1.) THIS is an application to revise an order of the Civil Judge Second Class Kolares holding that an objection preferred by the non -applicant 'Santosh Kumar' under Order 21, Rule 58 after the execution sale can be inquired into. The sale took place on 26 -11 -1951. The non -applicant filed this objection on 6 -12 -1951. The sale was confirmed on 19 -7 -1952.

(2.) THE short point for consideration in this revision petition is whether the lower Court has jurisdiction to entertain a claim under Order 21, Rule 58 after the execution sale has taken place. Mr. Shivdayal learned Counsel for the applicant relying on the authority of the decisions in -Sasthicharan v. Gopalchandra : AIR 1937 Cal 390 (A); and Ningauda v. Nabi Sahab Abalal : AIR 1942 Bom 263 (B) contended that it was incompetent to an executing Court to entertain an application under Order 21, Rule 58 after the sale has actually taken place. He argued that on the sale of the property, it was ipso facto released from attachment and, therefore any investigation after the sale into the claim, of the third party objecting to the attachment and sale was meaningless. In reply Mr. Motilal Gupta commanded to me for acceptance the view of the Madras and Nagpur High Courts that an attachment subsists till the confirmation of the sale and that, therefore, the consideration or investigation of a claim under Order 21, Rule 58 is not barred after the sale. Mr. Gupta referred me to the decisions reported in -Jagannatham v. Pydayya : AIR 1931 Mad 782 (C); Ram -chandra v. Kayam Hussain : AIR 1938 Nag 475 (D).

(3.) LEARNED Counsel for the non -applicant laid some stress on the fact that Order 21, Rule 58 empowered the Court to refuse to investigate a claim or objection if it was designedly or unnecessarily delayed, and said that this showed that an objection made after sale could be entertained. There is no force in this contention. The fact that the Court is empowered to refuse to investigate a claim or objection on the ground of delay and that the Court has also been given the power to postpone the sale is no way inconsistent with the conclusion that the investigation could not be made after the sale. The proviso in Order 21, Rule 58(1) and Sub -rule (2) only mean that the Court can decline to investigate the claim if it is made just before the sale and that it can also postpone the sale, if the claim cannot be disposed of before the sale is actually held.