Case Note & Summary
The appellant, Swamy H.L., filed a Regular Second Appeal under Section 100 CPC against the judgment and decree dated 19.09.2008 passed by the First Appellate Court in R.A.No.68/2004. The First Appellate Court had allowed the appeal filed by the 1st respondent, Lakshmamma, and set aside the order dated 05.07.2004 passed by the Executing Court on I.A.No.4 filed under Order XXI Rule 58 read with Section 151 CPC in Execution No.127/1999. The Executing Court had dismissed the claim petition. The appellant claimed ownership of the property that was attached in execution of a decree. The property had been attached before judgment in O.S.No.131/1995. The appellant contended that he was the owner and in possession of the property. The respondents argued that the claim petition was not maintainable as the attachment was before judgment and the appellant was not in possession. The High Court analyzed the provisions of Order XXI Rule 58 CPC and held that a claim petition under that provision is maintainable only when the property is attached in execution of a decree and the claimant is in possession of the property at the time of attachment. Since the attachment in this case was before judgment and the appellant was not in possession, the claim petition was not maintainable. The High Court allowed the appeal, set aside the judgment of the First Appellate Court, and restored the order of the Executing Court dismissing the claim petition.
Headnote
A) Civil Procedure - Execution - Claim Petition - Order XXI Rule 58 read with Section 151 CPC - Maintainability - The appellant filed a claim petition under Order XXI Rule 58 CPC claiming ownership of property attached in execution of a decree. The court held that since the property was attached before judgment and the appellant was not in possession at the time of attachment, the claim petition was not maintainable. The appeal was allowed, setting aside the order of the First Appellate Court which had allowed the claim. (Paras 1-10)
B) Civil Procedure - Attachment before Judgment - Order XXXVIII Rule 5 CPC - Effect on Claim Petition - Where property is attached before judgment, a claim petition under Order XXI Rule 58 CPC is not maintainable as the attachment is not in execution of a decree. The proper remedy is to file an application under Order XXXVIII Rule 5 CPC or a suit. (Paras 5-8)
Issue of Consideration
Whether the claim petition filed under Order XXI Rule 58 CPC by the appellant is maintainable when the property was already attached before judgment and the appellant was not in possession of the property at the time of attachment.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the First Appellate Court dated 19.09.2008 in R.A.No.68/2004, and restored the order of the Executing Court dated 05.07.2004 dismissing I.A.No.4.
Law Points
- Order XXI Rule 58 CPC
- Section 151 CPC
- maintainability of claim petition
- attachment before judgment
- possession of property
- execution proceedings
Case Details
2018 LawText (KAR) (05) 8
Regular Second Appeal No.2313/2008 (MON)
Dr. H.B. Prabhakara Sastry
Sri. D.R. Sundaresha (for appellant), Smt. Archana Murthy (for R-1)
Lakshmamma, V.T. Rajachar, Channajamma
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Nature of Litigation
Regular Second Appeal under Section 100 CPC against judgment and decree in Regular Appeal No.68/2004 arising from an order on I.A.No.4 under Order XXI Rule 58 CPC in Execution No.127/1999.
Remedy Sought
The appellant sought to set aside the judgment of the First Appellate Court which allowed the claim petition of the 1st respondent and to restore the order of the Executing Court dismissing the claim petition.
Filing Reason
The appellant claimed ownership of property attached in execution of a decree and filed a claim petition under Order XXI Rule 58 CPC, which was dismissed by the Executing Court but allowed by the First Appellate Court.
Previous Decisions
The Executing Court (Prl. Civil Judge (Jr.Dn.), Mandya) dismissed I.A.No.4 filed under Order XXI Rule 58 CPC on 05.07.2004. The First Appellate Court (Addl. Civil Judge (Sr.Dn.) & CJM, Mandya) allowed R.A.No.68/2004 on 19.09.2008, setting aside the Executing Court's order and allowing the claim petition.
Issues
Whether the claim petition under Order XXI Rule 58 CPC is maintainable when the property was attached before judgment.
Whether the appellant was in possession of the property at the time of attachment.
Submissions/Arguments
Appellant argued that he was the owner and in possession of the property and that the claim petition was maintainable.
Respondents argued that the attachment was before judgment and the appellant was not in possession, hence the claim petition was not maintainable.
Ratio Decidendi
A claim petition under Order XXI Rule 58 CPC is maintainable only when the property is attached in execution of a decree and the claimant is in possession of the property at the time of attachment. If the attachment is before judgment, the proper remedy is to file an application under Order XXXVIII Rule 5 CPC or a suit.
Judgment Excerpts
This appeal arises out of judgment and decree dated 19.9.2008, passed by the Court of Civil Judge (Sr.Dn.), & CJM, Mandya...
The claim petition under Order XXI Rule 58 CPC is not maintainable when the property was attached before judgment and the claimant was not in possession.
Procedural History
The appellant filed a claim petition (I.A.No.4) under Order XXI Rule 58 read with Section 151 CPC in Execution No.127/1999 before the Prl. Civil Judge (Jr.Dn.), Mandya, which was dismissed on 05.07.2004. The 1st respondent filed Regular Appeal No.68/2004 before the Addl. Civil Judge (Sr.Dn.) & CJM, Mandya, which was allowed on 19.09.2008, setting aside the Executing Court's order and allowing the claim petition. The appellant then filed the present Regular Second Appeal under Section 100 CPC before the High Court of Karnataka.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXI Rule 58, Section 151, Section 100, Order XXXVIII Rule 5
