IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 OP(C).No. 3376 of 2011(O) ------------------------------------- [O.S. NO.132/2010 OF MUNSIFF'S COURT, PUNALUR] .............. PETITIONER: ------------------- PODIKUNJU, VARIKAVELLIL HOUSE, THAZHATHU VADAKKU MURI, PATTAZHYVADAKKEKARA VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADVS. SRI.MOHAN JACOB GEORGE, SMT. PARVATHY.P.V, SMT. REENA THOMAS, SRI. RAM MOHAN.L. RESPONDENTS: ------------------------ 1. M/S.JAYABHARATHAM FINANCIERS (REGISTERED), PUNALUR, PATHANAPURAM TALUK, KOLLAM DISTRICT - 691 305. 2. P.T.SUBASH BABU, JAYABHARATHAM BUNGLOW, PUNALUR - 691 305. 3. P.T.MOHAN BABU, JAYABHARATHAM GARDENS, NEAR RAILWAY STATION, PUNALUR. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2011, ALONG WITH O.P.(C).NO.3377/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).3376/2011-C: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1- TRUE COPY OF THE PLAINT IN O.S.NO.132 OF 2010 ON THE FILES OF THE MUNSIFFS COURT, PUNALUR. EXHIBIT P2- TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE APPLICATION FOR ATTACHMENT BEFORE JUDGMENT IN O.S.NO.132 OF 2010 ON THE FILES OF THE MUNSIFFS COURT, PUNALUR. EXHIBIT P3- TRUE COPY OF THE PETITION SEEKING ATTACHMENT BEFORE JUDGMENT O.S.NO.132/2010. EXHIBIT P4- TRUE COPY OF THE CLAIM PETITION, (I.A.NO.1585 OF 2010) IN O.S.NO.132 OF 2010 ON THE FILES OF THE MUNSIFFS COURT, PUNALUR. EXHIBIT P5- TRUE COPY OF THE OBJECTIONS FILED BY THE PLAINTIFF TO EXT.P4 CLAIM PETITION. EXHIBIT P6- TRUE COPY OF THE PROOF AFFIDAVIT SUBMITTED BY THE CLAIMANT IN I.A.NO.1585 OF 2010 IN O.S.NO.132 OF 2010 ON THE FILES OF THE MUNSIFFS COURT, PUNALUR. EXHIBIT P7- TRUE COPY OF THE ORDER IN I.A.NO.452 OF 1995 IN O.S.NO.74 OF 1995 OF THE SUBORDINATE JUDGE'S COURT, KOTTARAKKARA. EXHIBIT P8- TRUE COPY OF THE AGREEMENT OF AGENCY WITH THE OFFICIAL RECEIVER ON 31.08.1998. EXHIBIT P9- TRUE COPY OF THE ORDER IN I.A.NO.1585 OF 2010 IN O.S.NO.132 OF 2010 ON THE FILES OF THE MUNSIFFS COURT, PUNALUR DATED 12.04.2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).Nos.3376, 3377, 3378 and 3379 of 2011 --------------------------------------- Dated this 19th day of October, 2011 JUDGMENT All these original petitions arise from orders passed on the claim petitions filed by the third respondent in O.S.Nos.132 of 2010, 133 of 2010, 134 of 2010 and 135 of 2010 of the Court of learned Munsiff, Punalur. Petitioner filed the above said suits against respondents 1 and 2 of recovery of money. Certain properties were placed under attachment before judgment. Third respondent made claims to the attached properties by separate applications filed in the respective suits. The claim petitions were resisted by petitioners. Learned Munsiff conducted an enquiry on the claim petitions and passed the impugned orders upholding the claims and lifting the attachment in the respective cases. Those orders are under challenge in these original petitions. 2. I heard learned counsel for petitioner on the maintainability of original petitions. Learned counsel submits that the impugned orders are passed by the learned Munsiff on the trial side allowing the claims and lifting the attachment before judgment and hence though the procedure to be followed is one under Rule 58 of Order XXI of the Code of Civil Procedure (for O.P(C).Nos.3376, 3377, 3378 and 3379 of 2011 -: 2 :- short, "the Code”), the orders are not amenable to appeal under sub rule (4) of Rule 58 of Order XXI. Learned counsel contends that Rule 8 of Order XXXVIII of the Code was substituted by Act 104 of 1976 with effect from 01.02.1977. Rule 8 as introduced by the said amendment states; “where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property attached in execution of a decree for the payment of money.” 3. According to learned counsel, it is by Act 104 of 1976 that Rule 63 of Order XXI of the Code was deleted and hence when Rule 8 of Order XXXVIII of the Code states that the claim shall be adjudicated upon “in the manner hereinbefore provided for” it follows that Rule 63 of Order XXI of the Code (deleted by Act 104 of 1976) as it stood before the amendment applied and hence the provision for appeal under sub rule (4) of Rule 58 of Order XXI of the Code does not apply. In that view of the matter, it is open to the petitioners to challenge the impugned orders under Art.227 of the Constitution. 4. After giving an anxious consideration of the argument of learned counsel, I find myself unable to give my assent to that. Reason is that though Rule 63 of Order XXI of the Code was O.P(C).Nos.3376, 3377, 3378 and 3379 of 2011 -: 3 :- deleted and Rule 8 of Order XXXVIII of the Code was substituted by Act 104 of 1976 with effect from the same day, when Rule 8 of Order XXXVIII states that where any claim is preferred to the property attached before judgment such claim shall be adjudicated upon “in the manner hereinbefore provided for”, for the adjudication of claims to property attached in execution of a decree for the payment of money, it meant that provisions of Rule 58 of Order XXI of the Code applied. The expression “hereinbefore provided” does not mean, as the learned counsel contends, as provided before amendment by Act 104 of 1976. There is no merit in the contention that the words “in the manner hereinbefore provided for” should relate to the position as it stood before Act 104 of 1976 came into effect. 5. It is clear from Rule 8 of Order XXXVIII of the Code that a claim to property attached before judgment is to be adjudicated as if it is a claim to property attached in execution of a decree for payment of money. That provision makes the provisions of Rule 58 of Order XXI applicable to a claim for property attached before judgment as well. 6. Rule 58(4) of Order XXI of the Code states that when a claim or objection has been adjudicated upon under Rule 58 (which takes in an adjudication of claim to property attached before judgment also by virtue of Rule 8 of Order XXXVIII) the O.P(C).Nos.3376, 3377, 3378 and 3379 of 2011 -: 4 :- order made thereon shall have the same force and subject to the same condition as to appeal or otherwise as if it were a decree. 7. No doubt, the order passed as above may not strictly come within the definition of Sec.2(2) of the Code. If it is a 'deemed decree' and the remedy is a regular appeal under Sec.96 of the Code. This question was considered by the Division Bench of this Court in Anto Mamkoottam Vs. Peruvanthanam Service Co-op Bank (1996(2) KLT 962). The facts of the case as seen form paragraph 2 of the decision would show that claims were made to property attached before judgment and those claims were allowed after enquiry. The unsuccessful plaintiff filed C.M appeals in this Court and the registry raised objection that C.M appeals would not lie since the order has the force of a decree as provided under Rule 58(4) of Order XXI of the code. The objection was upheld and it was held that the order (in that case passed on claim petitions filed in respect of property attached before judgment) should be treated as a 'deemed decree' by virtue of Sub Rule (4) of Rule 58 of Order XXI of the Code and hence the C.M appeals as if the order is one coming under Sec.104 of the Code would not lie; instead, there should be a regular appeal under Sec.96 of the Code treating the order as a deemed decree. In holding so, the Division Bench affirmed the O.P(C).Nos.3376, 3377, 3378 and 3379 of 2011 -: 5 :- decision of learned Single Judge in Ali Vs. Muhammedali (1995(2) KLT 225) where also the claim was regarding property attached before judgment. The order adjudicating the claim was challenged in revision in this Court. Learned Judge held that a revision under Sec.115 of the Code is not maintainable and that the remedy is by way of a regular appeal. 8. Learned counsel when faced with the above situation attempted to make a distinction that in those decisions on the ground that the argument based on the repealed provision of Rule 63 of Order XXI of the Code was not considered. But, a little earlier, I found that there is no substance in that argument. 9. In the light of the decisions above stated and on the face of the provisions of the Code, it follows that the impugned orders are amenable to appeal as if it were decrees under Sec.96 of the Code. 10. Learned counsel submitted that the time during which these original petitions were pending in this Court may be excluded while appeals are preferred. I make it clear that it is open to the petitioners to request the appellate court where the appeals are preferred to exclude the time during which these original petitions were pending in this Court (from 16.08.2010 till this day) and if such request is made the appellate court shall O.P(C).Nos.3376, 3377, 3378 and 3379 of 2011 -: 6 :- consider that request. With the above direction these original petitions are disposed of. Documents produced by petitioners along with these original petitions shall be returned to the petitioners on request. (THOMAS P JOSEPH, JUDGE) Sbna/-