IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 Ex.SA.No. 17 of 2004() ---------------------- AS.253/1996 of I ADDL. DISTRICT COURT, KOLLAM OS.294/1984 of ADDL.MUNSIFF COURT, KOLLAM (EA 487/93 IN EP 33/86) .................... APPELLANTS/RESPONDENTS 1 TO 3 - DEFENDANTS 1 TO 3 ------------------------------------------------------------------------------------ 1. OMANA, D/O.GOWRI, PLAKKAD KONATHU PUTHEN VEEDU, ATTINGAL. 2. BINDU OF DO. DO. 3. BEENA OF DO. DO. BY ADV. SRI.N.ANILKUMAR RESPONDENT(S): --------------------------- 1. KUNJIKUTTY SARASAMMA, SRIRANGATHU THEKKATHIL VEEDU, ASRAMAM, KOLLAM. 2. VISWANATHAN RAJU OF DO. DO. 3. SARASAMMA RAJI OF DO. DO. 4. KESAVAN VISWATHAN, MANGALATH MANDIRAM, PARAYIL, NOORANAD, THATHAPPUNNA WARD. 5. VISWANATHAN SATHEESAN, POST BOX NO. 1241, ALTAF, K.S.A. R1 & R2 BY ADVS. SMT.T.S.MAYA SMT.K.G.BINDU THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31 / 05 / 2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR, J ........................................... EX.SA .NO.17 OF 2004 ............................................ DATED THIS THE 31st DAY OF MAY, 2011 JUDGMENT The decree holder in E.P.33 of 1986 in O.S.294 of 1984 on the file of Additional Munsiff Court, Kollam who are the respondents in E.A.487 of 1993 are the appellants. Fourth respondent is the judgment debtor. The decree was passed on 7.6.1985 whereunder appellants were allowed to realise Rs.2400/-, being the arrears of maintenance as well as future maintenance to first appellant wife at the rate of Rs.100/- per month, and to appellants 2 and 3 the children at the rate of Rs.50/- per month, by sale of the decree schedule property, the property which was attached earlier under rule 5 of Order XXXVIII of Code of Civil Procedure, which were charged under the decree. Execution petition was filed on 1.2.1986 for sale of the charged property. EXSA 17/2004 2 Respondents 1 to 3 on behalf of the respondent No.5 filed E.A.487 of 1993 under Rule 58 of Order XXI of Code of Civil Procedure before the executing court, to raise the attachment contending that towards the maintenance due to them from the respondent No.4, O.S.801 of 1984 was filed in 1984 and a decree was obtained and in execution of the decree, properties were sold in court auction on 17.2.1993 and sale was confirmed on 25.5.1993 and therefore the property cannot be sold. 2. The said application was filed on 14.12.1993. The Executing Court by order dated 1.11.1996 dismissed the petition. Respondents 1 to 3 challenged the order before First Additional District Court, Kollam in A.S.253 of 1996. Learned Additional District Judge finding that the decree obtained by respondents 1 to 3 in O.S.801 of 1984 was already executed and properties were sold on 17.2.1993, before the property was sought to be sold in E.P.33 of 1986, held that the property cannot be sold again and therefore EXSA 17/2004 3 the order of the executing court was set aside and the claim petition was allowed holding that the said property cannot be proceeded for execution of the decree in O.S. 294 of 1984. The decree holders are challenging that order in the second appeal. The appeal was admitted formulating the following substantial questions of law. “1)In an attachment for maintenance since the right can be enforced against a subsequent transferee, a subsequent attachment made by a third party on the same property is hit by the provisions of Section 39 of the Transfer of Property Act. 2)Since attachment effected before judgment contained in execution also whether the party effecting first attachment has got more right than subsequent attachment if subsequent attachment is also made by court of same grade. 3)Is the claimant is bound to prove by evidence that she has no knowledge about previous attachment and the purchase is EXSA 17/2004 4 for valid consideration for escaping from Section 39 of Transfer of Property Act. 4) Is not the claim of the decree holder who received the decree first by fixing his/her claim as first charge over the attached property has to be honoured first above any subsequent sale, attachment and decree. 5) Is an equitable distribution of sale proceeds has to be made when more than are similar claims are there over one property”. 3. Learned counsel appearing for appellants and respondents were heard. On hearing the learned counsel, it is clear that the substantial question which is the most relevant was omitted to be formulated while admitting the appeal. The failure to formulate the substantial question will not take away the power of this court to hear the appeal on the said question. The proviso to sub-section 5 of Section 100 of Code of Civil Procedure enables this court to formulate additional question and hear the appeal, after EXSA 17/2004 5 recording reasons. Executing Court has not attached the property in execution of the decree. The property was in fact attached under Rule 5 of Order XXXVIII of Code of Civil Procedure when suit for maintenance was filed before the trial court. When the decree was passed, the attached property was charged for the decree debt, providing that the properties are liable to be sold for realisation of the decree debt. Therefore the question whether there is an attachment in execution proceedings and if there is no attachment, whether executing court can adjudicate a claim filed under Rule 58 of Order XXI of Code of Civil Procedure is necessarily to be decided in the second appeal. Hence the following additional substantial question of law is formulated. “When the property was not attached in the execution proceedings and the attachment was made before the judgment and the decree sought to be executed is a charged decree, whether a claim petition under Rule 58 of EXSA 17/2004 6 Order XXI of Code of Civil Procedure would lie and if not, whether the claim petition is maintainable”. Sub-rule 1 of Rule 58 of Order XXI reads :- “Adjudication of claims to, or objections to attachment of, property :- (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”. 4. Therefore to maintain an application under Rule 58 EXSA 17/2004 7 of Order XXI of Code of Civil Procedure, the property should be attached in execution of the decree. If there is no order of attachment by the executing court and the decree sought to be executed is a charged decree, no petition under Rule 58 of Order XXI of Code of Civil Procedure would lie. 5. If there is an attachment before judgment in the suit and that attachment is to be raised, the application is to be filed before original side as provided under Rule 8 of Order XXXVIII. Rule 8 of Order XXXVIII reads:- “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 herein before provided for the adjudication of claims to property attached in execution of a decree for the payment of money”. EXSA 17/2004 8 6. Though there is an order of attachment before judgment whereunder the property sought to be sold was attached, as it is not an attachment in the execution proceedings, no petition would lie under Rule 58 of Order XXI of the Code. 7. What was sought to be executed in the execution petition is a charged decree. When sale is sought not in respect of the property attached in the execution, the executing court should not have entertained the petition, as no petition under Rule 58 of Order XXI of Code of Civil Procedure would lie. In such circumstances, the claim petition itself is not maintainable. Unfortunately the executing court and the first appellate court failed to take note of this material defect in the application. 8. Even if it is taken that the attachment sought to be raised is the attachment, which was made before judgment, such an application should be filed on the original side as provided under Rule 8 of Order XXXVIII and not in the EXSA 17/2004 9 execution stage. Under the proviso (b) to sub-rule 1 of Rule 58 of Order XXI, if the claim or objection raised was designedly or unnecessarily delayed, it is liable to be dismissed. True, if under sub-rule 5 of Rule 58 of Order XXI of Code of Civil Procedure, when a claim or objection is preferred under sub-rule 1, the court refuses to entertain it, the party against whom such an order is made has a right to establish the right which he claims to the disputed property before the civil court. That does not mean that a claim petition if raised designedly or unnecessarily delayed is to be entertained. Therefore the claim petition even if maintainable should not have been entertained by the executing court and should not have been interfered by the first appellate court especially when no claim petition would lie under Rule 58 of Order XXI of Code of Civil Procedure. Unfortunately, this aspect was omitted to be looked into by both the courts below. 9. Appeal is allowed. The order of the First Additional EXSA 17/2004 10 District Court, Kollam in A.S.253 of 1996 allowing E.A.487 of 1993 filed by respondents 1 to 3 in E.P.33 of 1985 and the finding that the property cannot be proceeded in execution of the decree in O.S.294 of 1984 is set aside. E.A.487 of 1993 stands dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE lgk