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Adjudication of claims at different stages in Execution proceedings and

By: [Link] Devi, Senior Civil Judge, Suryapet.

Introduction:

Where any property is attached in execution of a decree, it is always

open to the parties, their representatives or third parties to raise objection

against such attachment. Before the amendment of CPC in 1976, the

executing court used to deal with investigation of claims and objections

summarily. The scope of such enquiry was very limited and confined to

possession and the only remedy for the aggrieved party is to institute a

separate suit. Pursuant to the recommendations made by the Law

commission in its fourteenth report at page 452-53 and Twenty Seventh

Report at page 198, the amended CPC expressly provided that all questions

including questions of title are to be settled finally in execution proceedings

itself and not by a separate suit.

I. Distinction between Section 47 CPC and O.21 R.58:

If an objection is raised to the attachment of the property by a party or

his representatives, the question falls under section 47 of the CPC and it

should be decided by the executing court and not by a separate suit. On the

other hand, if such an objection is raised by a third party, he has to file an

application under Order 21. R.58 CPC before the executing court. Where

the executing court entertains the claim or objection, it will hold a full-

fledged enquiry into the right, title and interest of the claimant or objector

and record a finding either upholding the claim or objection or rejecting it.

On the other hand, if the court refuses to entertain the petition, the claimant

can prefer a separate suit to establish his right.

II. Who may apply:

It was held in Union of India Vs Jardine Henderson ((1979) 2 SCC

258) that any person who at the time of attachment of property has some

right, title or interest in or possessed the property attached, may lodge a

claim or raise an objection against the attachment. Even though the word

third party is not used in the provision, a person who is not a party or

representative of the party to the proceeding may file a claim petition if he

has any right or other interest in the property attached by the court. The

expression third party was interpreted by the supreme court as referring to

such persons who do not derive any rights or claims through Judgment

Debtor in Sha Sulthana (died) Per Lrs vs Anil Agarwal and another reported

in 2012 (5) ALT 546.

III. Order 21 R.58:

Order 21 R.58 of CPC deals with the adjudication of claims or

objections to the attachment of property. It was held in Gopana Subba

Rayudu Vs Pasupuleti Venkata Ramana reported in 2009 (6) ALD 544 that

Rule 58 of Order 21 of CPC can be invoked not only in cases of attachment

of immovable property but also for movable properties and the rule does not

make any difference in the nature of property that was attached.

According to Sub Section 1 of Rule 58, 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. Where the court entertains the claim, it must investigate upon all

questions, including the questions of right, title and interest in the property

under attachment.
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The precondition for filing an application under Order 21 Rule 58

CPC is that there must be an attachment of any property. If there is no

attachment or if the property is not capable of being attached, then no

Petition can be filed under the rule. It was held in K.L Geetha Nandini Vs

K.L. Nagaraju and another (2009(3) APLJ 79) that “a mortgage decree for

sale is not regarded as decree capable of execution by attachment as no

contingency for attachment would arise and hence claim petition is not

maintainable”.

According to the proviso of Sub Section 1 of Rule 58, the executing

court may refuse to entertain a claim petition if

1. Where before the claim is preferred or objection is made, the property

attached has already been sold

2. Where the court considers that the claim or objection was designedly or

unnecessarily delayed.

The conditions laid down in the proviso do not lay any bar on

the executing court to entertain a claim petition but they merely provide the

grounds upon which the executing court may refuse to entertain the petition.

A claim under Rule 58 is maintainable even though the properties are sold or

the sale is confirmed and it will not deprive the court of its jurisdiction to

adjudicate on the claim. The Supreme Court of India laid the above

proposition in Kancherla Lakshmi Narayana Vs Mattaparthi Shyamala

reported in AIR 2008 SC 2069 and held that “In the event of claim being

allowed, the sale and confirmation of sale shall to that extent be treated as

nullity and of no effect as the JDr has not title which could pay to the court

auction purchaser”.
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The executing court may refuse to entertain the claim petition if

it considers that the objection or claim was designedly or unnecessarily

delayed. However, before refusing the petition, the court shall give an

opportunity to the claimant to explain the delay as the only option left to the

claimant on refusal would be filing of separate suit which results in

protracted litigation. In this regard, It was held by the AP High Court in A.

Eswarappa Vs M. Krishna Reddy reported in AIR 1964 AP 99 that “The

failure to raise an objection to an attachment before judgment is no bar to

claim at the time of execution. The claim may not be rejected on the sole

ground that the claimant has an opportunity to prefer a claim or objection at

an earlier stage of the proceeding. The court has to look into the

circumstances of the case and come to a conclusion about whether the

present claim is aimed at unnecessarily delaying the proceedings”.

It is also clearly laid out in Rule 58(2) that, all issues including the

questions relating to right, title or interest in the property arising between the

parties to the proceeding or their representatives relevant to the adjudication

of the claim or objection shall be determined by the court dealing with the

claim or objection and not by a separate suit. In Bobbilineni Raj Kumar vs

Dudala Veera Swamy in 2014 (1) ALT 196 it was held that “Claim petition

filed in the execution proceedings be decided on merits on all questions

relating to right, title and interest in respect of attached schedule property as

if it is a suit”.

Rule 58(3) of Order 21 provides for the orders that may be passed by

the court after adjudication of the claim petition. After entertaining the

claim petition, the court shall investigate fully and not summarily and upon

adjudicating upon all questions, the court may

1. Allow the claim or objection and release the property from attachment

either wholly or to such extent as it thinks fit or;

a. Disallow the claim or objection or ;

b. Continue the attachment subject to any mortgage, charge or interest in

favour of any person or ;

c. Pass such orders as in the circumstances of the case it deems fit.

According to Order 21 Rule 58(4), the order made by the

court shall have the same force and be subject to the same conditions as to

appeal or otherwise as if it were a decree. The remedy available to the

parties is to prefer appeal over the order passed by the execution court. It

was held by the full bench of the AP High Court in Gurram Seetharam

Reddy vs Gunti Yashoda reported in AIR 2005 AP 95 that even a second

appeal lies over an appellate order passed on application under Order 21

Rule 58.

Rule 58(5) of Order 21 declares that where a claim preferred or

objection raised is not entertained by the executing court on the ground that

the property as sold before the claim was preferred or that the claim or

objection was designedly or unnecessarily delayed, it is open to the

aggrieved party to file a suit to establish his right. Rule 59 of Order 21

deals with the procedure to be followed by the execution court if a claim

petition is filed. According to the rule, where before the claim was preferred

or the objection was raised, the property attached has already been

advertised for sale, the court may

i. If the property is movable, postpone the sale.

ii. If the property is immovable, make an order that the property

IV. Rule 246 of C.R.P provides that an application by a claimant or

objector under rule 58 of order 21 shall be made by a verified

execution application entitled in execution petition under which the

property in question has been attached and shall set forth the

particulars of the claim in the manner prescribed for the plaint in a

suit.

V. Coming to Sec.47 of C.P.C. which deals with the questions to be

1. The Object of sec. 47 c.p.c.: Its object is to avert another suit

concerrning the decree under execution. Its scope is very wide and

comprehensive enough to include all questions relating to the execution,

discharge or satisfaction of the decree. Sub-section (1) of Section 47 of

C.P.C. is mandatory as per the decision reported in AIR 2006

SC2161(Padmaben Vs Yogendra Rathore). The exercise of Power under

this section is microscopic and lies in a very narrow inspection hole. The

executing court can allow objection under this section to the executability of

the decree, if it is found that the same is void abinitio and nullity, apart from

the ground that the decree is not capable of execution under law either

because the same was passed in ignorance of such a provision of law or the

law was promulgated making a decree inexecutable after its passing as held

in the decision reported in AIR 2001 SC 2552 (Dhurandhar Prasad Vs Jai

Prakash).

2. The word 'Representative” used in this section is obviously

much wider than the word 'Legal representative' as used in Sec.50 C.P.C as

per the decision reported in AIR 1997 SC 1812.(Gangabai Gopaldas Vs

Fulchand). A Transferee pendentelite and transferee by operation of law is a

representative. Hence the Dispute relating to the claim to be a

representative, has to be definitely resolved by the executing court. For the

purpose of this section, the auction purchaser deemingly is a party to the suit

in which the decree is passed if he has purchased the property at the sale

and execution of the decree as held in the decision reported in AIR 1992 SC

385 (Kumar Sudhendu Vs Mrs. Renuka Biswas)

3. Now coming to the essential conditions under this section;-1. The

question must relate to the execution or discharge or satisfaction of the

decree. 2. It must arise between the parties to the suit in which the decree

was passed or their representatives and 3. It must be for determination of

such questions by the court executing the decree as held in the decision

reported in AIR 1978 AP 160 ([Link] Vs.

[Link]).

4. When the suit as to immovable property has been decreed and

the property is not definitely identified, the defect in the court record caused

by overlooking of the provisions contained in O.7 R.3 and O.20 R.3 C.P.C

is capable of being cured. After all a successful plaintiff should not be

deprived of the fruits of the decree. Resort can be had to Sec.152 or Sec.47

C.P.C. depending on the facts and circumstances of each case. Being an

inadvertent error, not effecting the merits of the case, it may be corrected

U/s.152 C.P.C by the court which passed the decree by supplying the

omission. The exact description of decretal property may be ascertained by

the executing court as a question relating to execution, discharge or

satisfaction of decree within the meaning of this section. When any person
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claiming title to the property in his possession, obstructing the attempt by

the Dhr. to dispossess him from the said property, the executing court is

competent to consider all the questions raised by the persons offering

obstruction and to pass appropriate order, which is construed as a decree

U/O.21 R.103 C.P.C.

5. The dispute between joint decree holders is foreign to the

provisions of Sec.47 and if the whole of the decree cannot be executed, the

provisions of O.21 R.15 C.P.C are also not applicable and the Dhr. has to

work out his rights in an approrpriate suit for partition as held in the decision

reported in AIR 1999 SC1694 (Jagadish Dutt Vs Dharam Paul). The

questions as to the identity of the decretal property, the inclusion of the

property not included in the decree or in excess of the decree and recovery

of such property, are to be examined by the executing court under Sec47

C.P.C. as held in the decision reported in(Marudanayagam Pillai V

[Link]) AIR 1968 Mad 433.

6. Pleas which have already been adjudicated upon by the trial

court cannot be agitated again in E.p. proceedings under sec.47 and O.21

R.58 c.p.c because the executing court is not competent to go behind the

decree and substitute its own opinion to the one expressed by the court

which passed the decree as observed by our Apex court in the decision

reported in (Ravinder Kaur V Ashok Kumar) AIR2004 SC904. In a suit

for partition of properties assessed to the government revenue, once the

court passed the decree, it ceases to have any further function in the matter

and all further proceedings relating to the execution of such decree are to be

carried out by the revenue officer. Sec.47 c.p.c. is not applicable to such

cases and grievances relating to the execution of such decree can be

determined by filing of the independent suit as per the decision reported in

(AIR 2001 Ker 133).

7. Mere irregualarities in conducting the auction sale, which do

not go to the root of the court's jurisdiction, are covered under O.21 R.90

C.P.C. and not by sec.47 C.P.C. as held by their Lordship in the decision

reported in AIR 1981 SC693 (S.A. Sundararajan Vs. A.P.V. Rajendran).

All questions arising between the auction purchaser and the judgment

debtor must be determined by the executing court and not by a separate suit

as per the decision reported in AIR 1973 SC 2423 (Harnandrai Badridas v

Debidutt Bhagawati prasad). An application under sec.47 C.P.C. is not

maintainable to set aside an auction which was held and confirmed in

execution of a decree, in the absence of any application under O.21 R.89

C.P.C as held in the decision reported in AIR 1987 SC 1443 (Ganpat singh

vs Kailash Shankar)

8. Coming to the provisions i.e.O.21r.54 (1A) and 66(2) of

C.P.C. the sale without giving notice to the Jdr at the time of attachment as

well as before the sale for furnishing the value of the property is illegal and

libale to be setaside under sec.47 C.P.C, as per the decision reported in

(T.E. George Vs Kuaplapaka Samba) reported in 1984 (2) ALT 19.

When the property is sold in execution by fraud, two remedies are

available to the owner of the property. One under Sec.47 C.P.C. and another

under O.21 R.90 C.P.C. The scope under sec.47 is wider amplitude and the

limitation period is also enlarged U/.Article 137 of limitation act. However

the scope under O.21 R.90 is restrictive and akin to discretionary as held in

the decision reported in ([Link] Rao Vs [Link] Subba rao) 1984

(2) ALT 89 NRC. In case of a dispute or obstruction to the delivery of

possession, the auction purchaser is entitled to file an application under

Sec.47 c.p.c r/w. O.21 R.95 and the executing court shall decide all the

questions including the right to possession. A receiver could be appointed to

take possession of the case property as held in the decision reported in 1984

(1) ALT 313 (P. Gangadhar vs [Link])

9. Where the symbolic possession is given in execution,

subsequent suit for physical possesssion is not barred by sec.47 C.P.C. It is

only the executing court which is competent to order sec. 47 c.p.c. to refund

the amount realized in excess of the amount due under the decree. The

Dispute between two parties claiming to be the legal representatives of the

Dhr. is covered by O.22 R5.c.p.c and such controversy cannot be decided

under sec.47 C.P.C as held in the decision reported in AIR 1934 All

730(Shanker lal vs. Shyam sunderlal). Where the property of a person,

who is not a party to the decree proceedings is sold in execution, suit by

such person that the attachment and sale would not be binding on him,

would not be barred by Sec.47 C.P.C as held in (Ameena Bi Vs.

Kuppuswami Naidu) reported in AIR 1993 SC 1628.

10. When the decree is passed against the dead person without

bringing his [Link] on recrod, it is a nullity and it is not executable against

them and they can challenge the sale in execution of a decree under Sec.47

C.P.C as held in the decision reported in AIR 1968 pat 32 (Central bank of

India Vs Gaibi Das) . The decree is not binding on the LR's to the extent of

his interest and his remedy is by way of a separate suit as held in the

decision reported in AIR 1941 Mad 898 (FB). The question of saleablility

of JDr's interest in a property attached in E.P. proceedings is covered by

Sec.47 c.p.c. O.21 R.2 C.P.C. and sec.47 c.p.c. enable the executing
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court to record and enforce a compromise in execution proceedings as held

in AIR 1968 SC 1087 (Motilal Banker Vs Maharaj Kumar). Even the

Motor accident claim tribunal can exercise powers under sec.47 and O.21

C.P.C.

11. Sub-tenant without being party to eviction proceedings, can file

application u/s.47 c.p.c without an application under O.1 r.10 c.p.c. as per

the decision reported in AIR 1990 Cal 262. Where the application under

sec.47 C.P.C. is either dismissed for default or by agreement without

deciding the same on merit, fresh application is maintainable and principle

of res-judicata is not applicable as held in the decision reported in (Kanta

prasad vs. II addl. District judge) AIR 1997 All 201. The question of

excessive execution of a decree can be decided only under sec.47 c.p.c. as

per the decision reported in (Babul Ali Vs Smt. Khirada Dutta) AIR 1993

gau 6). Proceedings initiated under sec.47 c.p.c. operate as res judicata for

initiating fresh proceedings on the very same issues and against the very

same party. However, where the decree is prima facie void, resjudicata does

not apply as per the decision reported in AIR 1992 AP 323(Hussain Khan

vs. Yadavalli choultry).An application under sec47 C.P.C is governed by

A.137 of limitation act and the period of limitation is three years with effect

from the date, when the right to apply accrued as per the decision reported in

AIR 1982 Cal178 (rasomay mitra vs Smt Lachmi todi). An Appeal is not

maintainable against an order passed under sec.47 c.p.c. as held in AIR 1988

AP 226 FB (Guntupalli Rama Vs Guntupalli Rajamma).

12. In the following cases, the execution sales can be set aside under

sec.47 c.p.c. i.e. If the Dhr is the auction purchaser and the decree obtained

by him is set aside u.0.9 r.13 c.p.c. then sale even though it had been
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confirmed cannot stand and liable to be set aside.; The court in execution of

a decree, has no jurisdiction to sell property, over which it had no territorial

jurisdiction at the time it passed the order of sale, hence it can be set aside; If

the court ordered sale of any property notwithstanding previous discharge of

it, the sale under such order would be null and void as ultra vires and such

sale can be set-aside.

13. An application to set-aside an execution of sale on the ground

of absence of notice of settlement of sale proclamation as required under

O.21 r.66 c.p.c can only be considered under sec.47 c.p.c. Confirmation

of sale in favour of dhr-auction purchaser, when he failed to deposit the

balance of sale consideration in time, can only be challenged under sec.47

c.p.c. Auction sale in execution of mortgage money decree can be set aside

under sec.47 c.p.c. or displacement of the preliminary decree on which the

final decree is passed. An auction sale can be setaside under sec.47 c.p.c on

the ground of fraud. An order declaring the auction sale as nullity by reason

of violation of O.21 R.84 c.p.c. or other mandatory provisions is covered by

sec.47c.p.c. Even the questions as to remained rights of the Jdr in the

properties sold in auction are covered under this section as per the decision

reported in AIR 1967 SC 1344 (Ram chand Spg Vs M/s. Bijili Cotton Mills).

14. The question as to dispossession of L.R's of deceased tenant is

governed by sec.47 C.P.C. The Petition filed for reduction of upset price

under O.21 R 66 C.P.C is not covered by Sec.47 c.p.c. as held in the decision

reported [Link] 1966 AP152. The fixation of an upset price or refusal to do

so by the executing court is not a judicial act and not covered under sec.47

C.P.C (Edara Pattabahi Vthadikammal Veerabadra) AIR 1973 AP 24. If the

Mandatory provisions of publication have been omitted at the time of court

sale, then sec. 47 C.P.C. is attracted as held in AIR 1965 AP 215(Kummathi

Narayanappa V Talari Akkulappa).

Conclusion: The amended CPC expressly provides that all questions

including questions of title are to be settled finally in execution proceedings

itself and not by a separate suit. The questions relating to the delivery of

possession of property to purchaser deemed to be questions relating to

execution, discharge or satisfaction of the decree, hence separate suit is not

maintainable. So, it is the duty of the executing court to adjudicate all the

claims raised in e.p. proceedings. The claim may not be rejected on the sole

ground that the claimant has an opportunity to prefer a claim or objection at

an earlier stage of the proceeding. The court has to look into the

circumstances of the case and come to a conclusion about whether the

present claim is aimed at unnecessarily delaying the proceedings. Hence, by

considering the above provisions the executing court has to decide the claim

petitions effectively. Pleas which have already been adjudicated upon by the

trial court cannot be agitated again in E.P. proceedings under sec.47 and

O.21 R.58 c.p.c because the executing court is not competent to go behind

the decree and substitute its own opinion to the one expressed by the court

which passed the decree as observed by our Apex court in the decision

reported in (Ravinder Kaur V Ashok Kumar) AIR2004 SC904.

[Link] Devi,
Senior Civil Judge,
Suryapet.