LALITA DEVI Vs. SARAN SINGH

JUDGEMENT

(1.) THIS is a suit under Order 21 Rule 63 of the Code of Civil procedure for declaration to the effect that the property delineated in the plan annexed to the petition of the plaint belongs to the plaintiff and the defendant No. 2 having no right, title or interest in it, the same is not liable to be attached and sold in execution of the decree for Rs. 6412.75 obtained against the said defendant by defendant No 1. The Petition recites that the site of the building belongs to the defendant No. 2 but the building and the super -structure standing thereon was erected at the expense of the plaintiff who obtained the necessary permission from the Municipal Committee, Jammu. that the plaintiff mortgaged this building in favour of Krishan Chand son of Lal Man and that the defendant No. 1 has no right to have the building attached in execution of the said decree obtained by him against the defendant No. 2. The petitioner of the plaint further goes on to aver that on attachment of the building the plaintiff filed an objection petition under order 21 Rule 58 of the code of Civil Procedure before the learned District Judge Jammu praying that the said building be released from attachment but his counsel without obtaining instructions from him i. e. the plaintiff made a statement before the court that he did not want to press the objection petition which was accordingly dismissed on 4th Nov. 1967.

(2.) THE suit has been resisted by the defendant No. 1 interalia on the ground that the objection petition having been dismissed as not pressed, the present suit is not maintainable. On the pleadings of the parties, a preliminary issue to the following effect was framed : - Is the suit not maintainable in view of the fact that the objection petition under order 21 rule 58 of the Civil Procedure Code was not pressed by the counsel before the executing court ? OPD

(3.) MR . D. D. Thakur appearing for the defendant No. 1 has contended that no suit under order 21 rule 63 of the Code of civil procedure can lie without an objection petition under order 21 rule 5& of the Code of Civil Procedure and in the instant case, the objection petition having been withdrawn by the plaintiff, without the permission of the court, it is tantamount to the withdrawal of the claim and the present suit is thus barred under the provisions of order 23 Rule 1 read with section 141 of the Civil Procedure Code Elaborating his submissions he has further submitted that the objector in the proceedings under 21 rule 58 CPC is placed in the same position as a party to the suit and those objections have got to be investigated by the executing court and if there is no such investigation on account of withdrawn of the objection petition by the objector the very basis of the suit under order 21 Rule 63 of the Code of Civil Procedure is knocked out and the same does not lie. He has in support of his contention relied on a ruling of the Rangoon High Court reported as AIR 1929 Rangoon, 123.