SHEELA DEVI Vs. GURTEJ KAUR

JUDGEMENT

(1.) The plaintiff Sheela Devi filed the suit for declaration to the effect that she was owner-in-possession of the suit land. She also sought the relief of permanent injunction restraining the defendants/respondents from getting the land attached in execution of the decree for the recovery of Rs. 9200/-. It was alleged by the plaintiff that she became owner of the property in dispute by virtue of decree dated 18th February, 1975 (Ex. P1) which was passed against her husband Amar Nath (now deceased). According to the plaintiff, the defendants/respondents had obtained a decree for the recovery of an amount from her husband Amar Nath and they wanted the land in dispute to be auctioned for the recovery of those amounts. According to the plaintiff, since she had become owner of the suit property the said land was not liable to attachment and sale. The suit was contested, inter alia, on the ground that Amar Nath deceased, husband of the plaintiff, was the owner-in-possession of the suit land and that the decree obtained by the plaintiff on 18th February, 1975 was null and void. Moreover, the suit in the present form was not maintainable because earlier the plaintiff had filed objections in the executing Court which were dismissed and now the plaintiff was not entitled to file a separate suit. On the pleadings of the parties, the trial Court framed the issues out of which Issue No. 3 which is to the following effect was treated to be preliminary :-

(2.) Order 21, Rule 58(5), C.P.C., provides that "when a claim or an objection is preferred and the Court under the proviso to sub-rule (1), refuses to enterain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive." Proviso to sub-rule (1) is as under :

(3.) Moreover, in view of the Division Bench judgment of this Court in Avinash Chander v. Mohan Lal, 1984 AIR(P&H) 391, it is no more disputed that the objections under Order 21, rule 58, C.P.C. to the attachment of the property in the execution of a decree could be filed on behalf of the judgment-debtor as well as by the third person, and the same were to be decided accordingly under the said provisions and not by a separate suit. In this view of the matter, the appeal fails and is dismissed with no order as to costs. C.M. is dismissed as having become infructuous.