High Court of KeralaSingle Judge2010-11-01Appeal allowed; concurrent judgments reversed; ...

Ex.S.A.No.15 of 2006

Case / Petition Number:Ex.S.A.No.15 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S.S. Satheesachandran
Judgment Date: 2010-11-01
Court Decision / Holding: The appeal is allowed; the concurrent decisions of the lower courts are reversed; the claim petition is dismissed; the execution court shall proceed with the sale of the attached property; costs of the appeal are to be borne by both sides.
Final Disposition: Appeal allowed; concurrent judgments reversed; claim petition dismissed; execution court to proceed with sale of attached property; costs awarded to both sides.

Parties to the Case

Appellants / Petitioners

Mani, s/o. Velayudhan

Respondents

Rajappan
Rugmani
Preetha

Legal Representation & Advocates

Counsels for Petitioners

• Sajan Varghese K.
• Liju M.P.

Counsels for Respondents

• C. P. Ravikumar

Case Synopsis & Summary

This execution second appeal arises from O.S. No.820 of 2000 in the Munsiff Court, Palakkad, where movable properties attached in satisfaction of a decree against the judgment debtors were vacated in favor of the claimant. The decree holder, Mani, challenges concurrent decisions of the courts below upholding the claim petition filed by the 1st respondent, the claimant. The key questions concern whether the courts correctly appreciated the evidence and whether the claimant established title to any of the attached movables. The appellant’s counsel relies on the decision in Southern Steelmet and Alloys Ltd. v. B.M. Steel (AIR 1978 Madras 270) to argue that in attachment proceedings the burden and approach are misapprehended if the proceedings require the decree holder to prove title when a claimant sets up a right to the attached property. The claimant’s case, that movables were given to the wife under customary practice and that the property belonged to the wife rather than to the debtors, is contested. The High Court notes that Order XXI Rule 58(2) CPC requires all questions relating to the right, title or interest in the attached property to be determined in the execution proceedings, and not by a separate suit, and that the pendency of this dispute must be resolved by the execution court on the materials before it. The court ultimately reverses the lower courts, holds that the claim petition should be dismissed, and directs the execution court to proceed with sale of the attached property, with costs to both sides.

Provisions of Law Cited

Order XXI Rule 58(2), CPCOrder XXI Rule 63, CPCCPC (Code of Civil Procedure)Act 104 of 1976

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel argued that the lower courts misread the law by imposing a burden on the decree holder to prove title to the attached movables. Citing M/s. Southern Steelmet and Alloys Ltd. v. B.M. Steel (AIR 1978 Madras 270), they contend that disputes over attached property must be decided in execution proceedings under Order XXI Rule 58(2); the defendant husband’s claim is opportunistic and the movables are likely the wife’s property given as per customary practice. The onus rests with the claimant to establish an interest in the movables, not with the decree holder to prove ownership. The amendment to Order XXI Rule 58(2) makes a separate suit unnecessary, and the execution court must determine the right, title, or interest in the attached property from the materials before it. The appeal seeks reversal of the concurrent judgments and dismissal of the claim petition so that sale of the attached property can proceed.

Contentions of Respondents

Respondents contest that the appeal involves no substantial question of law; findings are primarily on facts, and the claimant’s evidence shows possession rather than clear title; the lower courts properly considered the evidence and the legitimacy of the attachment; the petition should not be dismissed on technical grounds, and the sale should not be prematurely halted while title remains unresolved.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M/s. Southern Steelmet and Alloys Ltd. v. B.M. Steel, Madras	AIR 1978 Madras 270	Positive	Cited as persuasive authority to support the proposition that disputes regarding attached property are to be decided in execution proceedings and that the burden concerns the right/title in the attached property, aligning with the appellant’s argument.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932** **Ex.SA.No. 15 of 2006()** **---------------------AS.65/2006 of DISTRICT COURT, PALAKKAD EA.722/04EP.327/02 IN OS.820/2000 of PRL.MUNSIFF COURT, PALAKKAD** **....................** ## **APPELLANT/APPELLANT/1ST RESPONDENT/DECREE HOLDER:** **---------------------------------------------------** **MANI, S/O. VELAYUDHAN, UNIRAMKUNNU, PIRAYIRI VILLAGE, PALAKKAD TALUK.** **BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **RESPONDENT(S)/RESPONDENTS/CLAIM PETITIONER/NON-PARTY/ JUDG.DEBTORS:** **-----------------------------------------------------------------** **1. RAJAPPAN, S/O. LATE KUNJAPPAN, PULLANIPARAMBIL HOUSE, KERALASSERI AMSOM & DESOM, PALAKKAD TALUK.** **2. RUGMANI, W/O. RAJAPPAN,** - **-DO- -DO-** **3. PREETHA, D/O. RAJAPPAN,** - **-DO- -DO-** **ADV. SRI.C.P.RAVIKUMAR FOR R1 TO 3** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER IN I.A.NO.2874/2006 IN EX.S.A.NO.15/2006** **DISMISSED.** **1.11.2010** **SD/- S.S.SATHEESACHANDRAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Ex.S.A.NO.15 OF 2006 ----------------------------------Dated this the 1[st] day of November, 2010** ## **J U D G M E N T** The decree holder in O.S.No.820 of 2000 on the file of the Munsiff Court, Palakkad has filed this appeal challenging the concurrent decision rendered by the two courts below on a claim petition filed by the 1[st] respondent, hereinafter referred to as the 'claimant', by which, the attachment made over the movable properties allegedly belonging to the 2[nd] and 3[rd] respondents/ judgment debtors had been vacated upholding the claim raised by the claimant. 2. Substantial questions of law raised in the appeal for hearing are thus: (i) Have the courts below acted in accordance with law in appreciating the evidence on record ? **Ex.S.A.No.15/2006** **2** (ii) Has the claim petitioner pleaded and proved title to any among the attached movables ? 3. I heard the learned counsel on both sides. The learned counsel for the appellant/decree holder relying on **M/s.Southern Steelmet and Alloys Ltd. v. B.M.Steel, Madras (AIR 1978 Madras 270)** contended that both the courts have mis-appreciated the disputed questions involved and also the materials tendered in the case as if the entire burden, when a claim is raised over the attached property, lies on the decree holder and not on the claimant, who sets up a claim over such properties. Adverting to the evidence tendered by the claimant as PW1, it is submitted by the counsel that he had practically conceded that as per the custom followed by his community, the wife is provided with valuable movable items by her family when she return to the husband's home after delivery of a child. The 3[rd] respondent is the daughter of the 2[nd] respondent, and against both of whom, the decree holder had obtained a decree based on a promissory note, the parties are **3** ## **Ex.S.A.No.15/2006** closely related to the plaintiff being the cousin of the 2[nd] respondent, the decree granted had been confirmed upto the second appeal, and the claim was raised by none other than the husband of the 2[nd] respondent after the 2[nd] and 3[rd] respondents proceeded in execution had set up a plea of no means and after it was found against, are the circumstances highlighted by the learned counsel to contend that the claim petition was nothing but a collusive affair by the husband of the 2[nd] respondent with the judgment debtors to screen the attached properties from being proceeded with sale for realisation of the decree debt. Per contra, the learned counsel appearing for the claimant/the 1[st] respondent contended that the appeal does not involve any question of law, leave alone substantial question of law, and the finding entered by the courts below is over disputed question of facts, and as such, no interference with the concurrent decision is called for. 4. Perusing the judgments rendered by both the courts below with reference to the submissions made by the counsel on both sides, it is seen that both courts have misguided its enquiry **Ex.S.A.No.15/2006** **4** over the claim raised under Order XXI Rule 58 of the Code of Civil Procedure ignoring that sub rule (2) of the above rule mandated that all questions arising between the parties relating to the right, title or interest in the property attached, shall be determined in such proceedings and not by a separate suit. Order XXI Rule 63 of the CPC, which was present before the amendment brought in under Act 104 of 1976, providing for a separate suit, is no longer available now, and after the amendment, as provided by sub rule (2) of Order XXI Rule 58 of the CPC, all disputed questions over the attached properties have to be decided by the execution court and the decision thereof, subject to appeal as provided by the Code, is final. That being so, when a claimant set up a claim over the attached property, the disputes over the title, right and interest over such property as between the parties in the proceedings, has to be resolved by the execution court on the materials produced. Ignoring that aspect, the trial court has jumped into the conclusion that the decree holder has to establish that the property attached belong to the judgment debtors, 2[nd] and 3[rd] respondents, and as no concrete evidence was tendered by the **Ex.S.A.No.15/2006** **5** decree holder that it belonged to the above judgment debtors, the claim raised by the claimant none other than the husband of one of the judgment debtors, the 2[nd] respondent, has to be upheld. No material whatsoever was produced by the claimant other than showing that the movable items attached were seized from a building under his occupation, which, admittedly, belong to him. His wife and daughter, 2[nd] and 3[rd] respondents reside under the common roof with him is conceded. He has also stated that the wife as per the custom followed is provided with valuable movables by her family. In that backdrop, the essential inference that could be drawn from the facts presented is that the movable items belonged to the wife especially where the husband failed to show his title and interest over the same. The lower appellate court went wrong in confirming the order of the trial court ignoring the fact that the claimant has not discharged his onus of proving that the attached movable items belong to him. Substantial question of law raised in the appeal is answered in favour of the appellant, with the result, the concurrent decision rendered by the courts below is reversed. The claim petition of the 1[st] respondent shall stand dismissed, **6** ## **Ex.S.A.No.15/2006** and the execution court shall proceed with further steps for sale of the attached property. The appeal is allowed directing both sides to suffer their respective costs. **S.S.SATHEESACHANDRAN JUDGE** prp **Ex.S.A.No.15/2006 7**