1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7173 OF 2008 Afsarbegum W/o.Kurbanali Kazi, Age-68 years, Occu-Household, R/o.Kazi Galli, Ausa, Tq.Ausa, Dist : Latur PETITIONER VERSUS 1. Tasaduq Ahmedali S/o.Kasimali Age-78 years, Occu-Agriculture, R/o.Kazi Galli, Ausa, Tq. Ausa, Dist : Latur. 2. Kurban Ali S/o.Kasimali, Age-78 years, Occu-Agriculture, R/o.Kazi Galli, Ausa, Tq.Ausa, Dist : Latur, 3. The State of Maharashtra, Through its Secretary, Mantralaya, Mumbai. RESPONDENTS Mr. R.R.Shaikh, Advocate for the petitioner. Mrs.Fatima Kazi with Mr.S.S.Kazi, for the first respondent. Respondent No.2 absent even though duly served. Mr. K.B.Chaudhary, AGP for the 3rd respondent. (CORAM : A.V.POTDAR, J.J.) DATE : 18/06/2009 ORAL JUDGMENT : 2 1. By the present writ petition, under Article 227 of The Constitution of India, the petitioner who has filed objection petition to the execution of the decree in Spl.Dkt.No.46/2003, has challenged the order passed below Exh.47 in the said darkhast. 2. Rule. 3. Rule made returnable forthwith. By the consent of the parties, the writ petition is taken up for final hearing at the stage of admission itself. 4. Brief facts which gave rise to file the present petition can be summarized as follows : Respondent no.1 herein has filed the suit for recovery of money bearing no. 7/93 against the respondent no.2 and others. The said suit came to be decreed on 25/06/1998. An appeal was preferred to challenge this decree bearing Reg.Civil Appeal No. 87/98 which came to be entirely abated and came to be disposed of. Therefore, for the recovery of the decreetal amount, Spl.Dkt.No. 46/2003 was filed in the Court of Civil Judge,S.D. Latur. It further appears in the said darkhast an application was moved dated 14/10/2008 under Order 21 Rule 54 of CPC for the attachment of property. Accordingly attachment order came to be passed in respect of house property situated in City Survey No.2104 and City Survey No.2119. It further appears that subsequent to this attachment, the present petitioner filed an application for release of the said attachment order by way of an application dated 11/09/2007 (which 3 is at Exh.47 in the darkhast proceeding in the Court of Civil Judge, S.D.Latur). By his order dated 14/10/2008, the application was rejected of which the impugned order is under challenge by way of this writ petition. 5. Heard advocate for petitioner followed by the arguments of learned advocate appearing for the first respondent. Considering the facts pleaded in the application, even though it was not mentioned in the application itself that under which provision of Law, the application was moved before the Trial Court, but considering the grounds on which the application was filed and the prayer clause, the application required to be treated under Order 21 Rule 58 of CPC. 6. How to adjudicate the proceeding in the execution when an objection application is filed about release of attachment, that adjudication covers under Rule 58 of Order 21 of CPC. After the application is filed in Execution Court, and the say is filed by the decree holder to that objection petition, the Executing Court require to frame the issues and then after giving an opportunity to lead the evidence in respect of their respective cases as made out by the decree holder by the JD as well as by the objection petitioner, the Court of Execution to pass the appropriate order. The order passed on the application filed under Order 21 Rule 58 of The CPC is an appealable order. 7. Bearing in mind this legal procedure, with the assistance of 4 learned advocate appearing for the petitioner as well as for the first respondent perused the case record annexed alongwith the present writ petition. Also perused the impugned order challenged by way of this writ petition. It appears that the objection petition was summarily decided without framing the issues and without giving an opportunity to lead the evidence about the objections raised under an application under Order 21 Rule 58 CPC and the Court of execution come to the conclusion that the decree passed in RCS No.25/2002 in favour of the Objection Petitioner is a collusive decree and not binding on the first respondent. To come to this conclusion, first there is no suit filed for the declaration about the nullity of the decree obtained in RCS No.25/2002. Merely on the basis of submissions across the bar, the decree passed by the competent Civil Court can not be thrown away by observing that the decree is collusive and not binding on the decree holder in the execution petition. Thus while passing the order on the objection petition filed under Order 21 Rule 58 of CPC, no proper procedure was followed about the adjudication of the objection petition. If the impugned order under challenge was passed without following the due procedure of Law, this order required to be quashed and set aside and the matter is remanded to the Jt.Civil Judge, S.D.Latur to decide the application fresh after following the due procedure of Law provided under Order 21 Rule 58 of CPC after giving opportunity to both the sides. Accordingly the order passed by Jt.Civil Judge, S.D.Latur on objection petition dated 14/10/2008 is hereby quashed and set aside. 5 8. Rule thus made absolute as indicated above. 9. The writ petition is hereby allowed with no order as to costs. Parties to appear before the Civil Judge, S.D.Latur within the period of 4 weeks from today for further hearing in the execution petition, but on or before 20/07/2009. (A.V.POTDAR, J.) khs/wp7173-08