IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 Ex.SA.No. 17 of 2011() ---------------------- AS.155/2011 of II ADDL. DISTRICT COURT, KOLLAM OS.420/2006 of PRL.SUB COURT., KOLLAM (EA 1066/10 IN EP 322/09) .................... APPELLANT/PETITIONER/CLAIMANT ------------------------------------------------------ K.PADMAKSHI, W/O.VASUDEVAN VRINDAVAN, SAKTHIKULANGARA WARD SAKTHIKULANGARA VILLAGE, KOLLAM. BY ADV. SRI.ASP.KURUP SRI.SADCHITH.P.KURUP RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. P.VIJAYAN, KUNNATHUVILA VEEDU PERINADU P.O., NEERAVIL, KOLLAM TALUK PERINAD VILLAGE. PIN.691 601 2. KALLUMPURATH CHITS & FINANCE REGD.OFFICE, KALLUMPURATH BUILDINGS SAKTHIKULANGARA P.O. SAKTHIKULANGARA VILLAGE KOLLAM.PIN.691 581. 3. RANI, D/O.NALINI, MANAGING DIRECTOR KALLUMPURATH CHITS & FINANCE HOUSE NO.227, PATTATHANAM NAGAR KOLLAM EAST VILLAGE, KOLLAM. PIN.691 001. 4. HARSHAN BABU, FINANCE MANAGER KALLUMPURATH CHITS & FINANCE VRINDAVAN, SAKTHIKULANGARA VILLAGE, KOLLAM.PIN.691 581. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Ex.S.A. No.17 OF 2011 =========================== Dated this the 24th day of October,2011 JUDGMENT Petitioner in E.P.No.322/2009 on the file of Principal Sub Judge, Kollam is the appellant. First respondent is the decree holder and respondents 2 to 4 the judgment debtors. E.P.322/2009 is filed under Rule 58 of Order XXI of Code of Civil Procedure contending that though the property was attached before judgment in O.S.420/2006, as if it is the property of the fourth respondent, appellant was unaware of the order of attachment and the description of the property attached is not correct and the attempt is to claim a portion of the property of the appellant also and hence the attachment is to be raised and consequently the sale of the property in execution of the decree is to be EX.S.A.17/2011 2 set aside. 2. First respondent the decree holder resisted the application contending that petition is not maintainable and the order of attachment or the sale cannot be set aside. 3. The executing court as per order dated 7.6.2011 dismissed the application finding that as the application was filed after the sale, the application will not lie. Appellant challenged the order before Additional District Court, Kollam in A.S.No.155/2011. Learned Additional District Judge found that though the property was sold in court auction, sale certificate was not issued and before the sale certificate was issued the application was filed and therefore the application is maintainable. But the learned District Judge dismissed the appeal holding that case of the appellant is that description of the property covered under the sale is not correct and it takes a portion of the property of the appellant also and that question could be agitated at the time of EX.S.A.17/2011 3 delivery. The second appeal is filed challenging the said decree and judgment. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that the property which was sold as the property of the fourth respondent/ judgment debtor is described in such a way and it takes in a portion of the property of the appellant and first respondent cannot claim any right over the property of the appellant obtained under Ext.A2 sale deed. It is therefore argued that first appellate court was not justified in dismissing the appeal after finding that dismissal of the application by the executing court on the ground that it was filed after the sale of the property in execution of the decree is not justifiable and the first appellate court is to be directed to decide the claim raised by the appellant. 6. On hearing the learned counsel, I do not find any substantial question of law involved in EX.S.A.17/2011 4 the appeal. 7. Admittedly the property was attached under Rule 5 of Order XXXVIII of Code of Civil Procedure before judgment in 2006, as if it is the property of the fourth respondent/judgment debtor. The suit was subsequently decreed and the order of attachment was made absolute. E.P.322/2009 was filed for execution of the decree. In execution of the decree the property attached was sold and was purchased by the first respondent decree holder. It is at this stage petition is filed under Rule 58 of Order XXI of Code of Civil Procedure. 8. Though Rule 58 enables a person to prefer any objection or claim to an order of attachment of a property on the ground that such property is not liable to such attachment and the court shall proceed to adjudicate the claim or objection in accordance with the provisions provided under Rule 58 such an application would lie only if there was an order of attachment in execution of the decree. When admittedly there was no order of attachment by EX.S.A.17/2011 5 the executing court and the attachment was under Rule 5 of Order XXXVIII of Code of Civil Procedure before judgment , an application under Rule 58 of Order XXI will not lie and on that sole ground the appeal is to be dismissed. 9. As is clear from the contentions of the appellant, the dispute is not with regard to the right of the fourth respondent as such, over the property attached. The case is that the description of the property is not correct as it takes in part of the property of the appellant also. Therefore essentially the dispute is with regard to the extent and boundary of the property belonging to the fourth respondent and the appellant. As rightly found by the first appellate court, once the sale certificate is issued and the decree holder files an application for delivery, appellant is entitled to cause obstruction to the delivery if under the sale certificate and the order of delivery any property belonging to him is sought to be taken delivery by the decree holder. At that EX.S.A.17/2011 6 stage appellant is entitled to file an application under Rule 97/99 of Order XXI of Code of Civil Procedure and if such an application is filed, the case has necessarily to be adjudicated by the executing court. It is made clear that the first respondent is entitled to the property belonging to the fourth respondent and not to any portion of the property belonging to the appellant. The appeal is therefore dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006