BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/03/2007 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.NPD.(MD).No.966 of 2006 and M.P.(MD).No.1 of 2006 1. P. Madhavan ... Petitioner 2. Indira Vs. 1. Periyakaruppan 2. Ponnammal ... Respondents Prayer Petition filed under Section 115 of Code of Civil Procedure against the order dated 13.04.2006 made in E.A.No.15 of 2003 in E.P.No.11 of 2002 in O.S.No.164 of 1996 on the file of the District Munsif, Tiruppathur. !For Petitioner ... Mr. C. Sundaravadivel ^For Respondents ... Mr. V. Kannan :ORDER
The petitioner in E.A.No.15 of 2003 in E.P.No.11 of 2002 in O.S.No.164 of
1996 are the Revision petitioners before this Court.
2. O.S.No.164 of 1996 was filed by the second respondent herein against
her husband, the husband first respondent herein for maintenance and charge over
the suit schedule properties. O.S.No.164 of 1996 was decreed on 29.01.1999
directing her (first respondent) husband herein to pay a sum of Rs.750/- every
month and a charge was created over the ‘A’ schedule property alone. The decree
holder wife, filed E.P.No.11 of 2002 for the sale of ‘A’and ‘B’ schedule
properties. Revision petitioners herein filed a claim petition under Order 21
Rule 58 in execution Petition No.11 0f 2002 praying to declare that they are
each entitled to 1/3 share in the ‘A’ schedule property and therefore to
discharge 2/3 share in the ‘A’ schedule property and to discharge the entire ‘B’
Schedule property from the execution proceedings.
3. The case of Revision petitioners is that they are the children of the
first respondent born to his second wife and as such they have a share in the
‘A’ schedule property which is a heridictory property even according to the
second respondent wife herein as admitted by her in the plaint in O.S.No.164 of
1996.
4. The execution Court after going through the decree made in O.S.No.164
of 1996, found that charge was created only with regard to ‘A’ schedule property
and there was no decree for the ‘B’ schedule property held that the entire ‘B’
schedule property is to be discharged from the execution proceedings. In so far
as the ‘A’ schedule properties are concerned, the execution Court directed the
Revision petitioners to file a separate suit in respect of their claim and
thereby dismissed their claim in respect of ‘A’ schedule property. Aggrieved
against the said order, the above Civil Revision Petition has been filed under
Section 115 of the Civil Procedure Code.
5. Heard the learned counsel for the petitioners and the learned counsel
for the 2nd respondent. I have also gone through the documents and the
Judgements referred to by them in support of their submissions.
6. The learned counsel for the second respondent raised preliminary
objection as to the maintainability of the Civil Revision Petition under Section
115 of Civil Procedure Code by contending that the adjudication of the execution
Court under Order 21 Rule 58(2) and (3) of C.P.C, is deemed to be a decree under
Sub-Section 4 of Rule 58 of Order 21 and as such only an appeal will be against
the order of the execution Court dated 13.04.2006. He relied on the decision of
this Court reported in 2004(2)M.L.J.105 (Minor Sathish Babu represented by his
father and natural guardian, P.Nagarajan Vs. Mohan and another).
7. To decide the question of maintainability of the Revision Petition, it
is useful to refer to Order 21 Rule 58 of C.P.C.
58. Adjudication of claims 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 provisions therein 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, fir; 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 circumstance of the case 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 wuch
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.
“58.A. Order of attachment to be communicated to the Registering Officer:-
Any order of attachment passed under Rule 54 of this Order raising the
attachment by removal, determination or release passed under Rules 55, 57 or 58
of this Order, shall be communicated to the Registering Officer within the local
limits of whose jurisdiction the whole or any part of the immovable property
comprised in such order is situate.”
11. A plain reading of the above would make it very clear that the
adjudication of the execution Court in a claim petition filed under Order 21
Rule 58 is deemed to be a decree and therefore only an appeal will lie against
an order of adjudication.
12. This Court in 2004(2) M.L.J.105 (cited supra) held that on a careful
analysis of the relevant provisions of the definition of a decree in Section
2(2)(a) C.P.C., S.104(1)(i) R/W Order 21 Rule 58(4) C.P.C, no regular appeal is
contemplated as provided u/s 96 of C.P.C. But a Civil Miscellaneous Appeal
alone is contemplated.
13. Hence I am necessarily to hold that the above revision petition filed
u/s 115 of C.P.C is not at all maintainable and the proper remedy for the
Revision petitioners is,to file a C.M.A before the appropriate Court.
14. In the result, the Civil Revision petition is dismissed as not
maintainable. No Costs. Connected C.M.P. is also dismissed.
To
The District Munsif Court
Tiruppathur.