Case Note & Summary
The Petitioner, Karur Vyasha Bank Limited, a banking company, filed a Writ Petition under Article 227 of the Constitution of India challenging an order dated 8 November 2017 passed by the 9th Civil Judge, Senior Division, Pune, below Exhibit-24 in Miscellaneous Application No.254 of 2017. The background is that the Bank had obtained a decree on 23 June 2006, and during the pendency of the suit, an order of attachment of a flat was passed on 31 August 2002, which was confirmed and converted to attachment after the decree. The Respondents (Hirabai Baburao Ekatpure and others) filed a Miscellaneous Application under Order 21 Rule 58 CPC in 2017 raising a claim in respect of the attached property. In that application, the Respondents filed an application at Exhibit-24 seeking framing of issues under Order 14 Rules 1 to 3 read with Section 141 CPC. The Bank opposed this, contending that the objection was filed after a delay of more than 15 years and that the trial court should first consider whether the objection was designedly or unnecessarily delayed under Order 21 Rule 58(1)(b) CPC before framing issues. The trial court, however, proceeded to frame issues without addressing the delay objection. The Bank challenged this order. The High Court found substance in the Bank's submission, noting that the attachment order was passed in 2002 and the decree in 2006, yet the Respondents raised their objection only in 2017. The Court held that the trial court ought to have first framed a preliminary issue regarding delay under Order 21 Rule 58(1)(b) CPC. Accordingly, the impugned order was set aside, and the trial court was directed to first frame and decide the issue of delay before proceeding further. The Writ Petition was allowed, and rule was made absolute with no order as to costs.
Headnote
A) Civil Procedure - Attachment of Property - Delay in Filing Objection - Order 21 Rule 58(1)(b) CPC - The trial court must first determine whether the objection to attachment was designedly or unnecessarily delayed before proceeding to frame issues under Order 14 Rules 1-3 CPC. In this case, the attachment order was passed in 2002 and the decree was passed in 2006, but the respondents filed their claim petition only in 2017, a delay of over 15 years. The trial court's order framing issues without considering this delay was set aside. (Paras 4-6) B) Civil Procedure - Framing of Issues - Preliminary Issue - Order 14 Rules 1-3 read with Section 141 CPC - When a claim petition under Order 21 Rule 58 CPC is filed, the court should first frame a preliminary issue regarding delay under Order 21 Rule 58(1)(b) CPC before proceeding to other issues. The trial court's failure to do so was erroneous. (Paras 5-6)
Issue of Consideration
Whether the trial court was justified in framing issues under Order 14 Rules 1-3 CPC without first considering the objection of the decree-holder that the claim petition under Order 21 Rule 58 CPC was designedly or unnecessarily delayed.
Final Decision
The Writ Petition is allowed. The impugned order dated 8 November 2017 passed by the 9th Civil Judge, Senior Division, Pune, below Exhibit-24 in Miscellaneous Application No.254 of 2017 is set aside. The trial court is directed to first frame and decide the issue of delay under Order 21 Rule 58(1)(b) CPC before proceeding further. Rule is made absolute. No order as to costs.
Law Points
- Order 21 Rule 58(1)(b) CPC requires preliminary determination of delay in filing objection to attachment
- Order 14 Rules 1-3 CPC
- Section 141 CPC
- Article 227 of Constitution of India
