CHHOGA LAL Vs. KHET MAL

JUDGEMENT

(1.) THE sole question which arises in this revision application is, whether the executing Court has jurisdiction to entertain a claim purporting to be under Order 21 Rule 58 (1) C. P. C. , after the execution sale has taken place, but before it is confirmed. On this question there Is a conflict of judicial opinion. The High Courts of Bombay, Calcutta, Lahore, Madhya Bharat, Patna and Rangoon have taken the view that the Court has no such Jurisdiction. The reasons for this view are contained in the following decisions: gopal Chandra Mukherji v. Notobar Kundu, 15 Ind Cas 53 (Cal); Maung po Pe v. Maung Kwa, AIR 1928 Rang 80; Sasthi Charan v. Gopal Chandra, AIR 1937 Cal 390;

(2.) A contrary view was taken in the following decisions: jagannadham v. Pydayya, AIR 1931 Mad 782; Mukhi v. Allahbux, AIR 1933 Sind 198; Ramchandra v. Kayam Hussain, AIR 1938 Nag 475; ramiah v. Cowdiah, AIR 1958 Mys 140. Having fully considered the above decisions and the arguments advanced by the learned counsel for the parties, I am of the opinion that the latter view is preterable.

(3.) CLAUSE (1) of Order 21 Rule 58 makes it incumbent upon the Court to proceed to investigate a claim or objection which is preferred to the attachment of the property which is attached in execution of a decree on the ground that such property is not liable to such attachment, except where the Court considers that the claim or objection was designedly or unnecessarily delayed, in which case again the proviso contained in that clause makes it equally incumbent upon the court to decline to investigate the same. Clause (2) gives power to the Court to postpone the sale pending investigation of a claim or objection. One reason given in favour of the first view is that the interence to be drawn from Clause (2) is that once and sale has taken place there can be no investigation of the claim or objection. This is not tenable. The expression used in Clause (2) is "may" as opposed to the expression "snail" appearing in Clause (1 ). Prima facie therefore clause (2) is no absolute bar to the Court proceeding with the sale of the attached property notwithstanding the pendency or an application for raising attachment.