Thursday, 23 May 2013

Objection to Attachment of property can be raised in Execution proceeding



IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.277 OF 2011
Central Bank of India,

V/s
1. Cirilo Vales,

DATE : 20th OCTOBER, 2011

Citation;2012 (7)ALL M R121

The above petition challenges the order dated 18/03/2011
passed by the learned Civil Judge, Senior Division Margao
whereby an application filed by the petitioner under Order 21 Rule
58 of the CPC came to be rejected.

5.
Shri Usgaonkar, learned Counsel appearing for the petitioner
has assailed the impugned order and pointed out that the learned
Judge has proceeded on a wrong assumption that the suit flat was
attached pursuant to an order passed in Special Civil Suit No.34/04
dated 21/04/2005. The learned Counsel has taken me through the

said order and pointed that no such document was referred to by
the learned Judge while passing the impugned order. The learned
Counsel further pointed out that the attachment carried out in the
execution proceedings was after the mortgage executed in favour
of the petitioner and, as such, in any event such attachment cannot
affect the right of the petitioner over the suit flat. Learned Counsel
further pointed out that the learned Judge ought to have held an
inquiry with regard to the claim put forward by the petitioner
before deciding the application filed by the petitioner under Order
21 Rule 58 of C.P.C. Learned Counsel has taken me through the
impugned order and pointed out that the learned Judge has totally
misdirected itself in refusing the application filed by the petitioner
and as such the impugned order deserves to be quashed and set
aside.
6.
On the other hand, Shri C.A. Coutinho, learned Counsel
appearing for the respondent has supported the impugned order.
Learned Counsel pointed out that the original vendor to the
mortgagor of the suit flat has purchased the property despite of an
order restraining the judgment debtor from alienating or
transferring the suit flat. Learned Counsel further pointed out that

as such the petitioners have no interest at all over the suit flat, in
view of the fact that there was a restrained order passed against the
judgment debtor in the said suit. Learned Counsel further pointed
out that considering the said aspect there is no infirmity committed
by the learned Judge while passing the impugned order.
7.
Having heard the learned Counsel and on perusal of the
record, I find that the application filed by the petitioner was under
Order 21 Rule 58 of the CPC. Order 21 Rule 58 of the CPC
contemplates an adjudication when an objection to the attachment
is raised by a party in the execution proceedings.
8.
In the present case, considering the objections raised by the
petitioner, it was incumbent upon the learned Judge to decide the
application only after holding an inquiry with regard to the
respective claim put forward by the parties herein. The learned
Judge while passing the impugned order has wrongly assumed that
the order passed in the suit dated 21/04/2005 was an order of
attachment. On perusal of the said order, I find no order to that
effect was passed on the said date. In fact, the application filed by
the respondent for attachment before the judgment was still

pending adjudication and, as such, the question of granting any
such attachment before disposing the application would not arise at
all.
Besides, the C.P.C. expressly contemplates the manner in
which the property has to be attached.
In the present case,
admittedly there is no material on record to come to the conclusion
that any such attachment was carried out in respect of the suit flat.
Apart from that Order 38 Rule 5 of the CPC also provides a
specific procedure to be followed for attachment before the
judgment or otherwise such attachment is void. Shri Coutinho
learned Counsel appearing for the respondent fairly accepted the
position that no such procedure or attachment was carried out by
the learned Judge during the pendency of the suit filed by the
respondents.
9.
Considering the said aspect, I find that the learned Judge has
erred in dismissing the application filed by the petitioner on
untenanted grounds. The application filed by the petitioner cannot
be said to be not maintainable in law or that it was filed after the
attachment was carried out in the execution proceedings. In fact,
objection to the attachment can be filed after such attachment is
carried out. As such, the impugned order cannot be sustained and

deserves to be set aside. The learned Judge will have to consider
the application filed by the petitioner afresh after holding an
inquiry and allowing the parties to lead evidence, if they so desire
and dispose of the application in accordance with law.
10.
In view of the above, I pass the following order:
ORDER
(i)
The impugned order dated 18/03/2011 is
quashed and set aside.
(ii) The learned Civil Judge Senior Division,
Margo is directed to decide the application
under Order 21 Rule 58 and 59 of the CPC filed
by the petitioner dated 7/08/2010, afresh after
hearing both the parties and holding an inquiry
in accordance with law.
(iii) All the contentions of both the parties on
merits of the said application are left open.
(iv) The learned Judge shall proceed to
dispose of the execution proceedings after the
above application is decided.
(iii)
Rule in the above terms.
(iv) Petition stands disposed of accordingly
with no order as to costs.
F.M. REIS, J.
NH/-

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