KEWAL SINGH Vs. UMESH MISHRA

JUDGEMENT

(1.) This is an appeal by the decree holder of Execution Case 42 of 1978 of the Subordinate Judge's Court Bhabua, against the order D/- 8-11-1979 passed by the Subordinate Judge on an application filed by the respondent under Order 21. Rule 58, Civil P. C. (hereinafter referred to as the Code) in that execution case making objection against the attachment of the property which is 2 1/2 decimals of Land in Bhabua town, which is given in the Talika of the execution case. The Executing court, namely, the learned Subordinate Judge allowed the claim of the respondent, who had made the claim under Order 21, Rule 58 of the Code, and had released the Talika property from the attachment and had set aside the Sale by that order against which order this appeal has been filed.

(2.) The aforesaid execution case had proceeded for realisation of costs passed in a suit against the judgment-debtor. Sri Brajballabh Mishra, and the property in question was given in Talika for realisation of the amount by the sale of the property. The respondent, Umesh Mishra, who is brother of the judgment-debtor, filed an application under Order 21, Rule 58 of the Code against the attachment claiming that the property in question did not belong to the judgment-debtor but to him. It was claimed that though the property was allotted in partition between the two brothers, the judgment-debtor and the applicant, to the share of the judgment-debtor but that subsequently by a deed of gift of 1973 (which was exhibit-5 in the miscellaneous case) the judgment-debtor had made a gift of the property to the applicant. It was claimed that the applicant had title and possession of the property and the judgment-debtor had none and, therefore, preferred the claim. The Executing Court by order D/- 8-1-1979, after an evidence by both the parties, allowed the claim of the applicant holding that the property belonged to the applicant (the present respondent) and, therefore, ordered the Talika property to be released from attachment. It may be noted that in spite of the claim filed, the sale of the property had taken place in the meantime and, therefore, when the claim was allowed, the sale was also set aside by that order. It is against that order that this appeal has been filed by the decree-holder.

(3.) At the outset, on behalf of the appellant a point has been raised that the claim-petition filed by the respondent before the Executing Court was not entertain able as it was filed after the sale had already taken place. This argument has been based on the proviso to Clause (1) of Rule 58 of Order 21 which runs as follows :