IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Ex.SA.No. 7 of 2005() ------------------------------ AS.NO. 114/2004 of PRINCIPAL SUB COURT,ATTINGAL OS.NO. 331/1999 of MUNSIFF COURT,VARKALA (EP.NO.1/01,EA.NO51/01) .................... APPELLANT/APPELLANT/PETITIONER: ---------------------------------------------------------- THAIBA, D/O. SAFIYA BEEVI, AGED 40, THERUVIL THEKKETHIL VEEDU, EDAVA DESOM & VILLAGE. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI RESPONDENT(S): RESPONDENT/DECREE HOLDER: ---------------------------------------------------------------------------- MUHAMMED KUNJU, AGED 60, KUNNILPUTHEN, WADAYARA DESOM, AYIROOR VILLAGE, AYIROOR P.O. (VIA. VARKALA, TRIVANDRUM). BY ADV. SRI.PRAKASH P.GEORGE SRI.BOBAN VARGHEESE THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, ALONG WITH EXSA NO. 8 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - EX. S.A No.7 & 8 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2011 J U D G M E N T Respondent is the decree holder in O.S Nos.331 of 1999 and 339 of 1999 on the file of Munsiff Court, Varkala. In execution of the decree in O.S No.331 of 1999, the respondent sought sale of the property attached before judgment. E.A No.51 of 2001 is then filed by the appellant, who is the sister of the judgment debtor, contending that the property belonged to her and, therefore, the property cannot not be sold for the debt due from the judgment debtor. E.P No.3 of 2001 was filed for execution of the decree in O.S No.339 of 1999. E.A No.67 of 2001 was filed by the appellant claiming that the judgment debtor has no right over the property sought to be sold, namely the property which was attached before judgment. The Execution Court as per common order dismissed the claim petitions. Appellant challenged the common order before Sub Court, Attingal in A.S No.114 of 2004 and A.S 119 of 2004. The learned Sub Judge as per the common order dated 17.03.2005, dismissed the appeals. Second appeals are filed challenging the judgment on the following questions of law:- EX.S.A No.7 & 8 of 2005 -2- “1) When the gift has taken effect, absolutely can be donor cancel the gift deed without the donee being in the party array. 2) Subsequent execution of sale deed jointly with donor can set aside the gift which has become absolute. 3) Merely because the donor was made party to the A3 sale deed at the instance of purchaser can whether (sic) set aside a document by which donee has got absolute title.” 2. On hearing the learned counsel appearing for the appellant and the respondent, it is seen that the most relevant substantial question of law was not formulated. Hence it is formulated as follows:- “When the properties sought to be sold in the Execution proceedings were not attached in the execution proceedings but were attached earlier under Rule 5 of Order XXXVIII of Code of Civil Procedure, whether a claim petition under Rule 58 of Order XXI of Code of Civil Procedure would lie.” 3. Admittedly, the property sought to be sold in both execution proceedings were attached before judgment and on passing the decree the orders of attachment were made absolute. It is those properties which are sought to be sold in execution of the decree. Rule 58 of Order XXI of the Code of Civil Procedure provides for adjudication of a claim or objection EX.S.A No.7 & 8 of 2005 -3- to the attachment in execution of a decree. Sub Rule (1) of Rule 58 reads :- “(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained,- (a) where, before the claim is preferred or objection is made, the property attached has already been sold: or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. Therefore, under sub-rule (1) to maintain a claim petition, there should be am attachment in execution of the decree. If there is no attachment, in the execution proceedings, no claim petition will lie. The properties sought to be sold are the properties charged under the decree as those properties were attached before judgment earlier. There is no necessity for attachment of those properties again in the execution proceedings. When there is no attachment in execution of the decree, no claim petition under Rule 58 of Order XXI would lie. EX.S.A No.7 & 8 of 2005 -4- 4. Rule 8 of Order XXXVIII of the Code of Civil Procedure provides for adjudication of the claim to the properties attached before judgment. Rule 8 of Order XXXVIII reads:- “8.Adjudication of claim to property attached before judgment.- 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.” When the properties sought to be sold are attached before judgment, the claim application should have been filed as provided under Rule 8 of Order XXXVIII before the original suit and not in the execution petition filed for sale of the property attached before judgment. Therefore, though the procedure provided under Rule 8 is the same procedure provided under Order XXI Rule 58, when no claim petition was filed before the original suit, when the property was attached, appellant is not entitled to file a petition under Rule 58 of Order XXI before the Execution Court. As provided under sub Rule 58 of Order XXI, when the claim or objection preferred under sub-section (1) is not entertained, the party is entitled to approach Civil Court to establish her right. Even if the petitions are to be EX.S.A No.7 & 8 of 2005 -5- treated as petitions filed under Rule 8 of Order XXXVIII of Code of Civil Procedure, they are not liable to be entertained, in view of proviso (b) of sub Rule (1) of Rule 58, which mandates that no claim petition shall be entertained if the claim or objection was designedly or unnecessarily delayed. When the attachment effected was before the judgment in the suit and the claim petitions are filed much after the decree when the properties are sought to be sold and that too, by the sister of the judgment debtor, they are not entitled to be entertained as provided under proviso (b) to sub Rule (1) of Rule 58. There is no merit in these appeals. Hence, the appeals are dismissed. M.SASIDHARAN NAMBIAR JUDGE krj