Beruflich Dokumente
Kultur Dokumente
Introduction:
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
Report at page 198, the amended CPC expressly provided that all questions
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
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
258) that any person who at the time of attachment of property has some
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
has any right or other interest in the property attached by the court. The
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
Rayudu Vs Pasupuleti Venkata Ramana reported in 2009 (6) ALD 544 that
of immovable property but also for movable properties and the rule does not
execution of a decree on the ground that such property is not liable to such
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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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
contingency for attachment would arise and hence claim petition is not
maintainable”.
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
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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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
claim at the time of execution. The claim may not be rejected on the sole
an earlier stage of the proceeding. The court has to look into the
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
of the claim or objection shall be determined by the court dealing with the
Dudala Veera Swamy in 2014 (1) ALT 196 it was held that “Claim petition
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
1. Allow the claim or objection and release the property from attachment
court shall have the same force and be subject to the same conditions as to
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
Rule 58.
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
petition is filed. According to the rule, where before the claim was preferred
or the objection was raised, the property attached has already been
property in question has been attached and shall set forth the
suit.
concerrning the decree under execution. Its scope is very wide and
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
Prakash).
much wider than the word 'Legal representative' as used in Sec.50 C.P.C as
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
decree. 2. It must arise between the parties to the suit in which the decree
such questions by the court executing the decree as held in the decision
B.Sreeramulu).
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
deprived of the fruits of the decree. Resort can be had to Sec.152 or Sec.47
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
satisfaction of decree within the meaning of this section. When any person
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the Dhr. to dispossess him from the said property, the executing court is
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
property not included in the decree or in excess of the decree and recovery
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
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
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
All questions arising between the auction purchaser and the judgment
debtor must be determined by the executing court and not by a separate suit
C.P.C as held in the decision reported in AIR 1987 SC 1443 (Ganpat singh
vs Kailash Shankar)
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
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
the scope under O.21 R.90 is restrictive and akin to discretionary as held in
Sec.47 c.p.c r/w. O.21 R.95 and the executing court shall decide all the
take possession of the case property as held in the decision reported in 1984
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
under sec.47 C.P.C as held in the decision reported in AIR 1934 All
such person that the attachment and sale would not be binding on him,
10. When the decree is passed against the dead person without
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
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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Motor accident claim tribunal can exercise powers under sec.47 and O.21
C.P.C.
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
prasad vs. II addl. District judge) AIR 1997 All 201. The question of
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
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
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
jurisdiction at the time it passed the order of sale, hence it can be set aside; If
it, the sale under such order would be null and void as ultra vires and such
O.21 r.66 c.p.c can only be considered under sec.47 c.p.c. Confirmation
c.p.c. Auction sale in execution of mortgage money decree can be set aside
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
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).
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
so by the executing court is not a judicial act and not covered under sec.47
itself and not by a separate suit. The questions relating to the delivery of
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
an earlier stage of the proceeding. The court has to look into the
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
V.Sharada Devi,
Senior Civil Judge,
Suryapet.