IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 Ex.SA.No. 15 of 2006() ---------------------- AS.65/2006 of DISTRICT COURT, PALAKKAD EA.722/04EP.327/02 IN OS.820/2000 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/1ST RESPONDENT/DECREE HOLDER: --------------------------------------------------- MANI, S/O. VELAYUDHAN, UNIRAMKUNNU, PIRAYIRI VILLAGE, PALAKKAD TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENTS/CLAIM PETITIONER/NON-PARTY/ JUDG.DEBTORS: ----------------------------------------------------------------- 1. RAJAPPAN, S/O. LATE KUNJAPPAN, PULLANIPARAMBIL HOUSE, KERALASSERI AMSOM & DESOM, PALAKKAD TALUK. 2. RUGMANI, W/O. RAJAPPAN, -DO- -DO- 3. PREETHA, D/O. RAJAPPAN, -DO- -DO- ADV. SRI.C.P.RAVIKUMAR FOR R1 TO 3 THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A.NO.2874/2006 IN EX.S.A.NO.15/2006 DISMISSED. 1.11.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- Ex.S.A.NO.15 OF 2006 ----------------------------------- Dated this the 1st day of November, 2010 J U D G M E N T The decree holder in O.S.No.820 of 2000 on the file of the Munsiff Court, Palakkad has filed this appeal challenging the concurrent decision rendered by the two courts below on a claim petition filed by the 1st respondent, hereinafter referred to as the 'claimant', by which, the attachment made over the movable properties allegedly belonging to the 2nd and 3rd respondents/ judgment debtors had been vacated upholding the claim raised by the claimant. 2. Substantial questions of law raised in the appeal for hearing are thus: (i) Have the courts below acted in accordance with law in appreciating the evidence on record ? Ex.S.A.No.15/2006 2 (ii) Has the claim petitioner pleaded and proved title to any among the attached movables ? 3. I heard the learned counsel on both sides. The learned counsel for the appellant/decree holder relying on M/s.Southern Steelmet and Alloys Ltd. v. B.M.Steel, Madras (AIR 1978 Madras 270) contended that both the courts have mis-appreciated the disputed questions involved and also the materials tendered in the case as if the entire burden, when a claim is raised over the attached property, lies on the decree holder and not on the claimant, who sets up a claim over such properties. Adverting to the evidence tendered by the claimant as PW1, it is submitted by the counsel that he had practically conceded that as per the custom followed by his community, the wife is provided with valuable movable items by her family when she return to the husband's home after delivery of a child. The 3rd respondent is the daughter of the 2nd respondent, and against both of whom, the decree holder had obtained a decree based on a promissory note, the parties are Ex.S.A.No.15/2006 3 closely related to the plaintiff being the cousin of the 2nd respondent, the decree granted had been confirmed upto the second appeal, and the claim was raised by none other than the husband of the 2nd respondent after the 2nd and 3rd respondents proceeded in execution had set up a plea of no means and after it was found against, are the circumstances highlighted by the learned counsel to contend that the claim petition was nothing but a collusive affair by the husband of the 2nd respondent with the judgment debtors to screen the attached properties from being proceeded with sale for realisation of the decree debt. Per contra, the learned counsel appearing for the claimant/the 1st respondent contended that the appeal does not involve any question of law, leave alone substantial question of law, and the finding entered by the courts below is over disputed question of facts, and as such, no interference with the concurrent decision is called for. 4. Perusing the judgments rendered by both the courts below with reference to the submissions made by the counsel on both sides, it is seen that both courts have misguided its enquiry Ex.S.A.No.15/2006 4 over the claim raised under Order XXI Rule 58 of the Code of Civil Procedure ignoring that sub rule (2) of the above rule mandated that all questions arising between the parties relating to the right, title or interest in the property attached, shall be determined in such proceedings and not by a separate suit. Order XXI Rule 63 of the CPC, which was present before the amendment brought in under Act 104 of 1976, providing for a separate suit, is no longer available now, and after the amendment, as provided by sub rule (2) of Order XXI Rule 58 of the CPC, all disputed questions over the attached properties have to be decided by the execution court and the decision thereof, subject to appeal as provided by the Code, is final. That being so, when a claimant set up a claim over the attached property, the disputes over the title, right and interest over such property as between the parties in the proceedings, has to be resolved by the execution court on the materials produced. Ignoring that aspect, the trial court has jumped into the conclusion that the decree holder has to establish that the property attached belong to the judgment debtors, 2nd and 3rd respondents, and as no concrete evidence was tendered by the Ex.S.A.No.15/2006 5 decree holder that it belonged to the above judgment debtors, the claim raised by the claimant none other than the husband of one of the judgment debtors, the 2nd respondent, has to be upheld. No material whatsoever was produced by the claimant other than showing that the movable items attached were seized from a building under his occupation, which, admittedly, belong to him. His wife and daughter, 2nd and 3rd respondents reside under the common roof with him is conceded. He has also stated that the wife as per the custom followed is provided with valuable movables by her family. In that backdrop, the essential inference that could be drawn from the facts presented is that the movable items belonged to the wife especially where the husband failed to show his title and interest over the same. The lower appellate court went wrong in confirming the order of the trial court ignoring the fact that the claimant has not discharged his onus of proving that the attached movable items belong to him. Substantial question of law raised in the appeal is answered in favour of the appellant, with the result, the concurrent decision rendered by the courts below is reversed. The claim petition of the 1st respondent shall stand dismissed, Ex.S.A.No.15/2006 6 and the execution court shall proceed with further steps for sale of the attached property. The appeal is allowed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp Ex.S.A.No.15/2006 7