IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 Ex.SA.No. 13 of 2008() -------------------------------- AS.NO. 203/2005 of 1 ADDL.DISTRICT COURT, KOZHIKODE E.A.NO.588/04 IN E.P.NO.276/03 IN OS.NO. 528/1997 of PRINCIPAL MUNSIFF COURT-1, KOZHIKODE. ------------------- APPELLANT: APPELLANT/ CLAIM PETITIONER --------------------------------------------------------------------- SHAJI, THEVAR VEETTIL, KECHERI AMSOM, KURUMBURKATTANERY DESOM, KOZHIKODE TALUK BY ADV. SRI.G.UNNIKRISHNON SRI.K.SANEESH KUMAR RESPONDENT(S): ---------------------------- 1. CATHOLIC SYRIAN BANK LTD., CALICUT BAZAR BRANCH NAGARAM AMSOM DESOM, KOZHIKODE TALUK 2. S.B.ASSOCIATES REP. BY PROPRIETOR, P.SURESH KUMAR, PADAMMAPURATH HOUSE, KASABA AMSOM, DESOM, KOZHIKODE. 3. K.DEVARAJ, KARIMBIL HOUSE, JOSEPH ROAD, KOZHIKODE. 4. T.K.VASUDEVAN, 3/356, THEEVAR VEETTIL HOUSE, JOSEPH ROAD, KOZHIKODE. BY THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... EX.SA No.13 OF 2008 ............................................ DATED THIS THE 7th DAY OF JUNE, 2011 JUDGMENT When the property which was attached before judgment in O.S.528 of 1997 was sought to be sold in E.P.276 of 2003 by the first respondent decree holder, appellant filed E.A.588 of 2004 as a claim petition quoting rule 97, 98, 101 and 105 of Order XXI of Code of Civil Procedure, contending that the property cannot be sold as he is entitled to half share in the plaint schedule property. Learned Munsiff by order dated 24.9.2005 dismissed the application. Appellant challenged the order before District Court, Kozhikode in A.S.203 of 2005. Learned District Judge dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. 3. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. First of all, there was no order of attachment by the executing court. Property sought to be sold was attached before judgment. If a claim petition is to be filed in respect of a property which is attached before judgment, the application is to be filed in the EXSA 13/2008 2 original side as provided under Rule 8 of Order XXXVIII of Code of Civil Procedure. So, no application would lie before the executing court under Rule 58 of Order XXI of Code of Civil Procedure, as there was no attachment by executing court. 4. Though learned counsel pointed out that applications were filed under Rule 97, 98, 101 and 105 of Order XXI of Code of Civil Procedure, such application will not lie before delivery was ordered, after sale of the property. Hence on that ground also, the application will not lie. In such circumstances, when admittedly the property was not sold, no petition to cause obstruction to the delivery would lie by the appellant, a stranger to the decree. I do not find it necessary to admit the appeal. Appellant is only claiming that he has half share in the plaint schedule property. Even if the property is sold, as if the judgment debtors are having absolute right over the property, what could be sold and what could be purchased by the purchaser is only the right due to the judgment debtor and the sale will not affect the right of the appellant, if any. Hence appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk