ORDER
B.S.A. Swamy, J.
1. Aggrieved by the order of the Senior Civil Judge in O.E.P. No. 17/99 in O.S. No. 257/ 1990 dated 10.4.2000 posting the Execution Petition on 24.4.2000 for confirmation of sale of the E.P. schedule property that has taken place on 3.4.2000, without disposing of the claim petition i.e. E.A. No. 38/2000, the present revision petition is filed.
2. The undisputed facts of the case are that the respondents filed O.S. No. 257/90 for recovery of a sum of Rs. 29,914/- on the basis of a pronote. The respondents seemed to have obtained attachment before judgment over the property held by the borrower. Subsequently, the suit was decreed on 17.4.1993 and thereafter the legal representatives of the decree-holders seemed to have filed E.P. No. 17/99 for realisation of the suit amount by bringing some of the properties of the judgment-debtor for sale.
3. The execution Court seemed to have adjourned the E.P. tor a considerable time to complete the formalities to bring the properties for sale. During the pendency of the execution petition, the judgment-debtor died and his legal representatives were brought on record. Ultimately the Execution Court passed orders on 24.1.2000 for issuance of proclamation of sale fixing the dale of auction as 28.2.2000. Auction look place on 3.4.2000 and the 4th decree-holder became the highest bidder in the said auction by offering a sum of Rs. 80,000/- for the properties included in the sale proclamation. At that stage the petitioner who is no other than the daughter-in-law of the judgment-debtor filed E.A. No. 39/2000 by contending that she purchased the suit schedule property from the deceased father-in-law on 30.9.1983 under an agreement of sale and sale consideration was paid in instalments. As she being the real owner of the suit schedule properly the Court cannot bring the same to auction. She also filed an application along with E.A. No. 39/2000 seeking stay of confirmation of sale and the same was dismissed instantaneously. At the same time the Court ordered notice on the claim petition and posted the matter to 27.4.2000.
4 The grievance of the claim pelitioncr this revision pelition is that the Court having entertained the claim petition, would not have taken the step to confirm the sale and if confirmation of sale is not stayed she will suffer irreparable loss and injury.
5. Heard both the Counsel.
6. The learned Counsel appearing for the petitioner having argued for a long tune sought permission to withdraw the revision pelition. But as this Court is confronted with similar situation very often, instead of acceding to his request, I am inclined to consider the purport and intention of Order 21, Rule 58 of C.P.C. which reads as follows :
“58. Adjudication of clums 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 provision 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.
(2) All questions (including questions relating to right, title or interest in the property attached) 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.
(3) Upon the determination of the questions referred to in Sub-rule (2), the Court shall, in accordance with such determination,–
(a) Allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) Disallow the claim or objection; or
(c) Continue the attachment, subject to any mortgage, charge or other interest in favour of any person; or
(d) Pass such order as in the circumstances of the cases it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.”
7. From the above, it is seen that as and when the Court receives a claim petition or objection made to attachment of any property in execution of the decree, it shall adjudicate the claim or the objection as per the procedure contemplated under the above Rule. Under Order 21 Rule 58 (1) it is made crystal clear that no claim or objection shall be entertained (i) if the property attached has been already sold before filing of the claim petition, or (ii) where the Court considers the claim or objection was designedly or unnecessarily delayed, Therefore the Court is not under an obligation to consider all claim applications or objections as and when they are filed as a matter of course. The Court has to exercise the discretion vested in it judicially and take a decision with regard to entertainment of a petition in furtherance of cause of justice but not to defeat the claims of the decree-holders and to see that unscrupulous litigant should not have the last laugh for successfully circumventing the law of the land. The Court should also keep in mind that under Rule 58(5) if the Court refuses to entertain the claim or objection petition, the party is always at liberty to file a suit for establishing her right over the property. Subject to any orders to be passed in a separate suit filed by the claimant the order passed refusing to entertain the claim or objection shall be conclusive.
8. Keeping the above legal principle in mind now I would like to examine the facts of the case.
9. Mr. K.S. Gopalakrishna, learned Counsel appearing for the petitioner vehemently contends that the Court below gravely erred in trying to confirm the sale without passing any order on his claim petition having entertained the same. I have gone through the proceedings that have taken place in the Court below. On the application filed by the petitioner the Court gave notice to the decree-holder. That does not mean that the claim petition is entertained by the Court. The Court has given notice to hear the other side and unless final orders admitting the claim petition are passed, it cannot be said that the claim petition is entertained. Hence I do not find any substance in the first contention. Secondly, under Rule 58(1)(a), the Court is not expected to entertain the claim applications if the property attached has already been sold. Though the date on which this application is filed is not shown in the certified copy of the order, it is seen that the application is of the year 2000 and the Court passed orders on 21.1.2000 for issuance of sale proclamation and fixed 28.2.2000 as the date for auction. Ultimately sale was also held on 3.4.2000. The petitioner filed another E.A. No. 39/2000 seeking stay of confirmation of sale pending adjudication of the claim petition and the same was dismissed instantaneously and that order has become final. As the sale of property under attachment was already over this application ought not have been entertained by the Court below at this belated stage.
Another interesting thing to be noticed in this case is that the respondents filed a suit for recovery of money against the father-in-law of the petitioner and her husband and both of them suffered a decree. It is rather unbelievable to say that she is not aware of the legal proceedings that are going on from 1990 till February or March, 2000 and she cannot come up with this claim application at this belated stage. Further, the agreement of sale that was brought into existence by the petitioner is only an unregistered agreement and no evidence whatsoever was produced before the Court to show that she is in possession of the property from the date of purchase of the property in 1983. All these facts will conclusively establish that she filed the present application only to delay the execution of the decree and also to circumvent the law of the land. It is nothing but a vexatious litigation and the parties should not be allowed to play hide and seek game with the law of the land. Courts are expected to come heavily on the conduct of litigants of this nature. I have taken pains in explaining the position so that the Subordinate Judiciary cannot deal with this type of petitions callously without applying their mind and defeat the claim of the decree-holder at the fag end of realization of the fruits of the decree. I hope this judgment will send required message to all the judicial officers concerned.
The Revision Petition is accordingly dismissed. No costs.