IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 Ex.SA.No. 6 of 2004() --------------------- AS.187/2000 of III ADDL.SUB COURT, KOZHIKODE OS.484/1990 of PRL.MUNSIFF COURT,KOZHIKODE-I (EA 240/2000 IN EP 171/96) .................... APPELLANT/APPELLANT --------------------------------------- KURIYALIL SREEDHARAN, S/O. KANDAKUTTY P.O. NADAKKAVU, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENT(S): RESPONDENTS IN APPEAL JD CLAIMANTS ------------------------------------------------- 1. MATTUVAYAL MATHIYAZHAKAN S/O. DASAN MAKKADA AMSOM, DESOM, KOZHIKODE TALUK. 2. DO.LAKSHMI D/O. MARIMUTHU, MATTUVAYAL, DO. 3. CHITRAM, DO. 4. PRABHU, DO. 5. SUNDARAM, (MINOR) AGED 16 YEARS, REPRESENTED BY FATHER 1ST RESPONDENT ADV. SRI.M.P.MOHAMMED ASLAM FOR R2 TO 5 THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... EX.SA No.6 of 2004 ............................................ DATED THIS THE 8th DAY OF AUGUST, 2011 JUDGMENT The decree holder in O.S.484 of 1990 on the file of Munsiff Court-I, Kozhikode is the appellant. Respondents are the claimants in E.A.240 of 2000. E.P.171 of 1996 was filed by the decree holder for execution of the decree. In execution of the decree, the property attached before judgment was sought for. The suit was originally dismissed on 24.2.1992. A.S.139 of 1992 was filed challenging the decree. In the first appeal, the property was again attached on 28.7.1992. The original attachment was on 27.10.1990. The appeal was allowed on 2.9.1995 and a decree was passed. The judgment debtor challenged the judgment before this court in S.A.977 of 1996. It was dismissed on 5.11.1996. During the pendency of the execution petition, the claimants filed E.A.240 of 2000 contending that the property belongs to them under Ext.A1 sale deed dated 7.3.1995 obtained from Asokan who in turn obtained it under Ext.A2 sale deed dated 30.4.1992 from the judgment debtor and therefore the EXSA 6/2004 2 property cannot be proceeded against. 2. Learned Munsiff on the evidence of Pws 1 and 2, RW1 and Exts.A1 to A4 allowed the application holding that the property belongs to the claimants under Ext.A1 sale deed and the property therefore cannot be proceeded against. Appellant challenged the judgment before Sub Court, Kozhikode in A.S.257 of 2000 which was made over to Sub Court, Kozhikode and numbered as A.S.187 of 2000. Learned Sub Judge, on re- appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Appeal was admitted formulating the following substantial question of law. “ Whether the lower courts were correct in allowing the claim petition filed by a person who played fraud on court as well as on the opposite party by suppressing vital documents relevant to the litigation and allow to continue the attachment ?”. 4. Learned senior counsel appearing for appellant and EXSA 6/2004 3 learned counsel appearing for respondents 2 to 5, the claim petitioners were heard. On hearing the learned counsel finding that a substantial question of law which should have been formulated was not formulated, the following substantial question of law is formulated. “ When the property was attached under Rule 5 of Order XXXVIII of Code of Civil Procedure before judgment, and no claim petition was filed as provided under Rule 8 of Order XXXVIII of Code of Civil Procedure, whether a claim petition would lie under Rule 58 of Order XXI of Code of Civil Procedure”. 5. On the facts there is no dispute. Appellant instituted the suit and got the property now claimed by the appellant attached before judgment under Rule 5 of Order XXXVIII of Code of Civil Procedure on 27.10.1990. The suit was dismissed by the trial court on 24.2.1992. As a result, the attachment was released. The appellant challenged the decree and judgment in A.S.139 of 1992. An order of attachment before judgment was passed in the appeal on 28.7.1992. The appeal was allowed on 2.9.1995 and the order of attachment was made absolute by the decree EXSA 6/2004 4 granted by first appellate court. Though it was challenged before this court in R.S.A.977 of 1996, the second appeal was dismissed on 5.11.1996. It was on 30.4.1992, after the dismissal of the suit on 24.2.1992, and before the order of attachment passed on 28.7.1992, the first respondent judgment debtor transferred the property under Ext.A2 in favour of Asokan on 30.4.1992. It is pertinent to note that subsequently after the order of attachment, the property was purchased by the wife and children of first respondent on 7.3.1995, from the assignee under Ext.B2. The execution petition was filed before the executing court on 2.8.1996. E.A.240 of 2000 was filed on 13.3.2000. 6. The question is whether the executing court can entertain a petition filed under Rule 58 of Order XXI of Code of Civil Procedure in respect of a property not attached in execution of the decree but attached before judgment under Rule 5 of Order XXXVIII of Code of Civil Procedure. The question has been considered by this court in Omana and another V. Kunjikutty Sarasamma and another (Ex.S.A.17 of 2004). It EXSA 6/2004 5 was held that when Rule 8 of Order XXXVIII of Code of Civil Procedure provides for adjudication of a claim on a property attached before judgment and Rule 5 of Order XXXVIII of Code of Civil Procedure and a petition under Rule 58 of Order XXI would lie only if there is an attachment in execution of the decree. It was held that a claim petition in respect of a property attached before judgment and not in execution of the decree will not lie under Rule 58 of Order XXI of the Code. In view of the decision, it is to be found that the executing court should not have entertained E.A.240 of 2000 as the property, which is proceeded against in E.P.171 of 1996, was not attached in execution of the decree but attached before judgment by the first appellate court in the suit. As provided under Sub-rule 5 of Rule 58 of Order XXI of the Code, when the claim or objection raised under sub-rule 1 of Rule 58 is not entertained, the party against whom such an order is made is at liberty to institute a suit to establish the right. As the claim petition will not lie, appeal can only be allowed. 7. Appeal is allowed. Order in E.A.240 of 2000 in E.P.171 EXSA 6/2004 6 of 1996 on the file of Munsiff Court, Kozhikode as confirmed by Sub Court, Kozhikode in A.S.187 of 2000 is set aside. E.A.240 of 2000 is dismissed holding that executing court should not have entertained the claim petition. M.SASIDHARAN NAMBIAR, JUDGE lgk