JUDGMENT
Sankarasubban, J.
1. These two appeals are filed against the orders in E.A. No. 131 of 1999 and K.A. No. 87 of 2000 in O.S. No. 644 of 1992 on the file the Sub Court. Tirur, E.F.A. No. 43 of 2001 is filed against the order in E.A. No. 131 of 1999, while
E.F.A. No. 44 of 2001 is filed against the order in E.A. No. 87 of 2000. Both these are claim petitions filed under Order 21. Rule 58 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C.’).
2. Appellant, in both these appeals, Anthony is the decree holder in O.S. No. 644 of 1992 of the Sub Court, Irinjalakuda. He filed the suit against the defendant–T.V. Viswanathan for recovery of money. After the filing of the suit, the appellant herein attached before judgment two items of properties by filing POP No. 22 of 1988. These two items of properties are 34.25 cents in sy. No. 297/4A and 1 acre and 28 cents in Sy. No. 268/2. On 27-2-1998, the Court called upon the respondent–Viswanathan to furnish security and to satisfy the plaint claim on or before 30-3-1988. It also issued conditional order. Since no security was furnished the property was attached on 1-3-1988.
3. It appears that thereafter, I claim petition was filed against the attachment. That was filed by the claimants Nazar and Jayaram praying for release of attachment as according to them, the properties do not belong to the judgment debtor. The claim petition is dated 8-3-1988. In the affidavit filed along with the claim petition, it is stated that the schedule properties were sold to the claimants and to one Dharmarajan, Raveendran, Appukuttan, Nizamudeen and Yuseff. The sale deed is dated 1-2-1988 and it was executed through Malappuram Sub Registry Office for valuable consideration by power of attorney holder of T.V. Viswanathan defendant in the case. On the date of at tachment, Viswanathan had no right over the properties. Certified copy of the claim petition is produced as Ext. A11 in the case.
4. It seems that the claimants had filed I.A. No. 67 of 1993 to withdraw the claim. On 11-3-1993, the claim petition was dismissed. It is further seen that on the same day, i.e. 11-3-1993, the suit was decreed. The attachment was made absolute and the decree passed was charged on the properties. Thereafter, it is seen that an execution petition was filed by the decree holder on 24-8-1997 for sale of the properties. It is then that the two claim petitions were filed. E.A. No. 131 of 1999 was filed on 11-6-1999 and it was filed by the Secretary, Darul-Huda Islamic Acadamy Managing Committee. In the affidavit accompanying the claim peti
tion, it was stated that the properties originally belonged to Viswanathan and by sale deed No. 201/1988, the properties were sold to strangers and that the properties have been assigned to the petitioner. The portions of the property attached have been sold to them. It is stated that Viswanathan had no right at the time of attachment. According to them, they came to know about the sale only on 14-6-1999. But they were informed that the property has been posted for sale. Hence, they prayed for releasing the attachment.
5. In the objection filed by the decree holder, it is stated that the properties were attached by order in I.A. No. 345 of 1988 on 26-2-1988. They referred to I.A. No. 432 of 1988 which is the claim petition. That claim petition was dismissed on 11-3-1993 and that order has become final. After the disposal of I.A. No. 432 of 1988, the petitioners in those I.As. have no right to sell the properties. It is further stated that the attachment was noted in the Sub Registry Office. The present petitioners are later assignees and the encumbrance certificate will show that the properties were attached and hence, the contention that they know about the attachment only recently is not correct and that the petition is barred by limitation and also that the claimants have no right.
6. Similarly another claim petition was filed by Abdul Wahab and others as E.A. No. 87 of 2000. It is stated that the third petitioner had obtained licence from Viswanathan and on the basis of the licence, she had constructed a theatre. It is further stated that petitioners 1 and 2 had obtained assignment deed. It is further stated that in E.A. No. 15 of 1995 in E.P. No. 23 of 1994, the right of the third petitioner is affirmed. According to them, the decree holder has no right over the property. Even before the attachment, the property has been sold. An objection was filed by the decree holder. In the objection, the decree holder referred to the earlier claim petitions filed as I.A. No. 432 of 1988 and that was dismissed and hence, the claimants cannot raise any further claim. The claimant denied that the third petitioner had licence over the property. It is further stated that the decree holder is not a party in E.A. No. 15 of 1995 in E.P No., 23 of 1994 and hence, the orders are not binding on the decree holder. The decree holder further denied that the
claimants had knowledge of the attachment only recently. The encumbrance certificate showed that the attachment has been effected. In any event, it was stated that the claim petition was barred by limitation and that because of the earlier claim petition filed by the predecessors of the claimants has been dismissed, the present petition was not maintainable.
7. In E.A. No. 131 of 1999, Exts. A1 to A12 were marked and the claimant was examined as PW 1. The decree holder was examined as RW1. In E.A. No. 87 of 2000, Exts. A1 to A10 were marked on the side of the claimants, the first claimant was examined as PW. 1. On the side of the respondents, the decree holder was examined as RW 1. By separate judgments dated 12-9-2001, the Court below allowed the applications. According to the Court below, on the date of the attachment, the judgment debtor had no marketable title over the property, be-cause according to the judgment debtor, the property was sold on 1-2-1988. The Court below took the view that there is no case that the sale deed Ext. A1 dated 1-2-1988 is a fraudulent one. So far as I.A. No. 432 of 1988, which was a claim petition filed at the trial side, the Court, below held as follows : The petitioners were not parties in that claim petition, so as to bar them in filing their own claim petition. The order in the I.A. can never be binding on them. On the date of filing the claim petition, I.A. No. 432 of 1988, the attachment had not become absolute. Regarding the question of delay, the Court below relied on the decision of Avira Joseph v. Kora Abraham (1988) 2 Ker LT 844 and held that the interim attachment is not one under Order 21 in execution of a decree and hence the decision is not applicable. Further it held that under Clause (b) of Order 21. Rule 58 that if the claim is not designedly or unnecessarily delayed, the petition ought to have been entertained. It further held that the petition was not unnecessarily delayed since it was filed immediately after the proclamation was settled. Besides it believed the statements of the claimants that they knew about the attachment only recently. A contention was made that Ext. A1 was not registered in the Sub Registry Office, Tirur, but it was registered at Malappuram and hence, the transaction was fraudulent. The Court held that because of that there was no irregularity in the registration. Thus, it was held that the property was not liable to be
attached. Similar reasoning was adopted in the other E.A. also. It is against the above orders that the E.F.As. are filed.
8. The first point to be considered is whether the claim petitions were barred by limitation. Learned counsel for the petitioner submitted that as per the decision in (1988) 2 Ker LT 844, Article 137 of the Limitation Act applies, it that be so. only three years time is there for filing the petition. Learned counsel for the appellant submitted that both the claim petitions were filed only three years after the purchase. The encumbrance certificate showed that there was attachment over the properties. Hence, according to him, the claim petitions were barred by limitation. Further, he submitted that case of the claimants that they came to know about it only recently is without any basis. Learned counsel submitted that the claim petitions ought to have been dismissed as barred by limitation. Learned counsel for the respondents submitted that the decision in (1988) 2 Ker LT 844 does not lay down the correct law. According to him. Order 21, Rule 56( 1) and the Proviso will show that no period is fixed for filing a claim petition. But the Court is directed not to entertain the claim petition when once the sale of the property is over. If the claim petition is filed before the sale is held, the Court below can receive the claim petition only if the Court feels that the petition was not designedly or unnecessarily delayed. In the present case, the claim petitions were filed before the sale was held. There was no evidence to show that the petitions were filed designedly or unnecessarily delayed.
9. In (1988) 2 Ker LT 844, Thomas, J. (as he then was) held that the petition under Order 21, Rule 58 of CPC is governed by Article 137 of the Limitation Act. Learned Judge drew sustenance for this from the decision in Union Bank of India v. Cherian (1987) 1 Ker LT 51. The learned Judge was of the view that the proviso stating that a claim petition should not be entertained, if it was unnecessasrily delayed cannot take away the applicability of Article 137 of the Limitation Act. With great respect, we don’t agree with the view expressed by the learned Judge. Order 21, Rule 58 of CPC. enables a person to file a claim petition, when once a property is attached by the Court. It may happen that the property may not belong to the judgment debtor and it
would have been attached as if it belonged to the judgment debtor. In such cases, a provision is made to enable the owner of the property to file a claim petition and get the property released from attachment instead driving the party to file a separate suit. After the amendment of the CPC in 1976, it has been laid down that all questions including those relating to right, title or interest in the property shall be determined by the Court dealing with the claim or objection and not by a separate suit. We are here only concerned with the question whether any period is fixed for the purpose of filing a claim petition. The proviso to Order 21, Rule 58 of CPC states thus :
“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”.
Thus, the Court before which the petition comes for adjudication will not entertain the application, if the property, which is attached is also sold or where the claim or objection is unnecessarily delayed. When this provisos is there, we cannot import the period prescribed under the Limitation Act. If Article 137 of the Limitation Act applies, then Clauses (a) and (b) of the Proviso to order 21, Rule 58 of CPC will become otiose. we can never intend that a rule or provision was made unnecessarily. Further a claim petition can be filed so long as the attachment subsists. There was difference of opinion earlier as to whether a claim petition can be filed after the sale is held. One view was the attachment merged in the sale and hence no claim petition can be filed under Order 21, Rule 58 after the sale. By the 1976 amendment this controversy had been set at rest. Hence, we are of the view that there is no particular period prescribed for filing the claim petition. The Court can entertain a claim petition subject to restrictions mentioned in Clauses (a) and (b) of the Proviso. In the present case, we find that the sale has not been held. It is further found that the petitioners have approached the Court as soon as they came to know that the property was to be sold. That discretion, according to us, has been properly exercised by
the Court below. Hence, according to us, the claim petitions cannot be thrown out on the ground of delay. Before we conclude our discussions on this point, we have to make it clear the following. Proviso to Order 21, Rule 58(1) of CPC states that a claim petition cannot be entertained on two grounds. Further it states under Clause (5) if the claim petition is not entertained on the grounds mentioned in Sub-rule (1), the party is entitled to file separate suit. Hence, before the Court proceeds with the enquiry in a petition under Order 21, Rule 58 of CPC the Court has to find out whether it can be entertained in view of the conditions under Clauses (a) or (b). Only if it is found that a claim petition can be entertained then only it need be posted for evidence on merits. We find in many cases, all the issues are tried together. There is no use in finding that the claim petition is not maintainable after asking the parties to adduce on merits.
10. The next submission made by the learned counsel for the appellant is that in the present case when the attachment before judgment was effected, a claim petition was filed as I.A. No. 432 of 1988 by the original purchasers of the property evidenced by Ext. Al. Subsequently, they filed a petition withdrawing their claim. The Court dismissed the petition to set aside the attachment and confirmed the attachment. A decree was also passed on the same day for the plaint amount. The present claim petitioners are the persons, who have obtained properties from the assignees of Ext. A1 sale deed or their assignees. Thus, they are persons, who are claiming under the petitioners in I.A. No. 432 of 1988. Learned counsel for the appellant submitted that when once the claim petition filed has been dismissed, a second claim petition cannot be filed by the same person or the persons claimed under them or their legal representatives. Learned counsel submitted as per Order 21, Rule 58(4) of CPC an order passed is a decree and unless the decree is set aside, the judgment will be binding and hence, no fresh petition can be filed. He further contended that even though no evidence was adduced, the claimants withdrew their claim. Hence, according to him, it was disposal by consent. Learned counsel for the respondents submitted that it was not disposal by consent. According to him, it was the disposal on default. Hence, he contended
that since it is the disposal on default, there was no consideration on merits and hence, there was no bar for the claimants in approaching the Court by filing the present applications. From the records, it appears that the petitioners in I.A. No. 432 of 1988 wanted to withdraw the claim petition. On the day on which the case was called, they were not present and hence, the claim petition was dismissed and attachment was confirmed. Order 21. Rule 58 of CPC states that the Court shall proceed with the adjudication upon the claim or objection in accordance with the provisions contained. Clause (2) of Rule 58 clearly states that all questions arising between the parties to a proceeding or their representatives under this rule and 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. Clause (4) says that 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. Balanarayana Marar, J. considered similar question in Joseph George v. Cochin Sanitary Wares (1991) 2 Ker LT 447. In that case, earlier a claim petition was filed, which was dismissed for default. Petition for restoration of the application was also dismissed. Further request for reviewing the order was also dismissed. Thus, the attachment became absolute. The question was whether the dismissal will be a bar and a second claim petition before the Executing Court is maintainable or not. The learned Judge referred to the decision of the Madras High Court in Cannanore Bank Ltd. v. Madhavi, AIR 1942 Madras 41 (FB) and then held as follows :
“The appellant has not filed a suit to challenge the order of dismissal of the earlier claim petition filed at the stage of attachment before judgment. That order has, therefore, become final and conclusive. It is true that Rule 63 of Order 21 was deleted by the amendment of CPC in 1976. By the amendment introduced in 1976 all questions including questions relating to right, title or interest in the property attached arising between the parties to a proceeding not by a separate suit.
The learned Judge further held as follows:
“The remedy of a defeated claimant is, therefore, to file an appeal against the order
and not to get the claim adjudicated by a separate suit. It is, therefore, contended that there has been a radical change in the provisions regarding adjudication of claims and objections by the amendment of 1976 and the dismissal of the earlier claim petition will not operate as a bar…………………… The
Court did not entertain the request of the claimant for a review of that order. It necessarily follows that the order of dismissal has become final. The remedy of the claimant is only to file an appeal against that order as if the order of dismissal is a decree. Appellant having failed to challenge that order by filing an appeal, the order of dismissal has become final. That order is, therefore, a bar in maintaining a claim petition at the time of execution”.
11. In this context, we refer to the decision of the Division Bench of this Court reported in Union Bank of India v. Cherian (1987) 1 Ker LT 51. Paripoornan. J. speaking for the Division Bench, held as follows : 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 these circumstances the present suit cannot be treated as one filed under Order XXI, Rule 58(5) of CPC and the sole question as to whether the Amount due to the plaintiff can the realised by the sale of the property was the very question decided by the execution Court in proceedings under Order 21, Rule 58(2), read with Clause (4) thereof. Such an adjudication having been decided once cannot be agitated again in a fresh suit filed by the plaintiff.
12. Learned counsel for the respondent tried to argue that since the case was not decided on the basis of evidence, whether the claim petition was true or not, there is no question of res judlcata. It is true that earlier claim petition was either dismissed for default or was deposed of on the basis of the concession. But even then, there is on order passed by, the Court dismissing the claim petition. The disposal of the claim petition has got its affect. At the most, it can be said that it was an order in default. Even if it is an order of default, can it be ignored. In the decision reported in Sallendra Narayan Bhanja Deo v. The State of Orissa, AIR 1956 SC 346, the Supreme Court held as follows :
“The plea of estoppel is sought to be
founded on the compromise decree Ex. ‘O’ passed by the Patna High Court on 2-5-1945 in F.A. No. 15 of 1941. The compromise decree is utilised in the first place as creating an estoppel by Judgment. In. In re : South American and Mexican Co., Ex parte Bank of England. (1895) 1 Ch 37, it has been held that a Judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams. J. Lord Herschell said at page 50 :–
“The truth is, a Judgment by consent is intended to put a stop to litigation between the parties Just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end”.
And I think it would be very mischievous one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action”.
13. In the present case there are two claim petitions, viz., E.A. Nos. 87 of 2000 and E.A. No. 131 of 1999. In E.A. No. 87 of 2000, the first two petitioners are claiming under the assignment deed, while the third petitioner has claimed on special right. According to her, she was given a licence to put up a theatre and accordingly, a theatre was put and it is a licence coupled with in-terest. She also relies on Ext. A7, which is an order in a claim petition filed by her ear-Her and that was allowed. Hence, her contention is that she is not claiming under the original assignees under Ext. Al. As we have already stated, the original assignees under Ext. A1 approached the Court with a claim petition. But they were not successful. But we are in the dark as to how the claim peti-tion was, disposed of. It is true that the claim petition has been dismissed. But an application for withdrawal was filed. Order is not available in the files. Further, we don’t know under what circumstances the claimants earlier withdrew from the petition. So also the present appellants are not parties to Ext. A7. In the circumstances, we are of the view that the matter requires fresh consideration at the hands of the Executing Court, Parties are to be given opportunity to adduce evidence regarding their right and also regarding the earlier proceedings.
In the above view of the matter, we set aside the impugned orders passed in the claim petitions. Appeals are allowed. The Executing Court is directed to consider the matter afresh. Parties can raise additional grounds, if they think it necessary.