Sanjay Jacob, Roshni Sanjeev and Sanjeev Jacob v Sakthan Kuries & Loans (P) Limited

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932** **OP(C).NO. 536 OF 2010(O)** **-----------------------AGAINST THE ORDER IN EP 85/2005 IN OS.773/2001 OF PRINCIPAL SUB COURT, PALAKKAD** **....................** **PETITIONERS:** - **---------------------** ## **1. SANJAY JACOB, S/O.NILAYARA JACOB.** ## **2. ROSHNI SANJEEV, W/O.SANJEEV JACOB.** **3. SANJEEV JACOB, S/O.NILAYARA JACOB. ALL ARE RESIDING AT VADAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.C.A.ANOOP** ## **RESPONDENT(S):** **--------------------------** **M/S.SAKTHAN KURIES & LOANS (P) LIMITED, REPRESENTED BY ITS CHAIRMAN, P.M.PAUL, S/O.PATTERI MICHAEL, RESIDING AT MANUVILASSERY VILLAGE, IRINJALAKUDA TALUK, THRISSUR DISTRICT.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R.”** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.536 of 2010 ==================================== Dated this the 02[nd] day of November, 2010** ## **J U D G M E N T** Following questions are raised for a decision in this petition filed under Article 227 of the Constitution: (i) Whether, a judgment debtor who had not objected to an attachment of immovable property made before judgment could raise objection to the attachment in execution of the decree? (ii) Whether, a judgment debtor who disclaims right over the property attached could make a claim or objection under Rule 58 of Order XXI of the Code Civil Procedure (for short, “the Code”)? 2. Short facts of the case are: Respondents filed O.S. No.773 of 2001 in the court of learned Sub Judge, Palakkad for recovery of money from petitioners. In the course of the suit ## **O.P(C) No.536 of 2010** ## -: 2 :- certain item of immovable property allegedly belonging to the petitioners was attached invoking power under Rule 5 of Order XXXVIII of the Code. Petitioners did not prefer any objection to attachment. The attachment before judgment was made absolute. Later a decree was passed in favour of respondent for recovery of money from petitioners. Since the property attached is situated within territorial limits of jurisdiction of Sub Court, Palakkad and respondent wanted execution against the property attached, decree certificate was transmitted to the court of learned Sub Judge, Palakkad. There, respondent filed E.P. No.85 of 2005 and wanted to proceed against the attached property after preliminary steps were over. At that stage petitioners filed a statement (which as stated in the impugned order admitted their right over the property attached) requesting for payment of the decree amount by installments. Petitioners then filed an additional counter statement disclaiming right over the attached property and contending that said property belonged to the South Malabar Trading Company and hence is not liable to be proceeded with in execution of the decree against them. In the executing court two objections were raised by the respondent; viz., that petitioners having not raised any objection **O.P(C) No.536 of 2010** ## -: 3 :- to the attachment before judgment before the trial court are precluded from raising such an objection in the executing court and secondly; since petitioners are disclaiming right over the property attached, they could not make any claim or objection as contemplated under Rule 58 of Order XXI of the Code. Executing court accepted the contentions and rejected objection raised by petitioners. Exhibit P2, order directing sale of the property in public auction is under challenge in this petition. Learned Senior Advocate contended that executing court was not correct in holding that petitioners having not raised any claim or objection against attachment on the trial side are precluded from raising the objection in execution. According to the learned Senior Advocate in view of Rule 11 of Order XXXVIII attachment before judgment continues to be an attachment in execution and there is nothing illegal in petitioners-judgment debtors objecting to saleability of the property under attachment even in execution notwithstanding that they have not raised such an objection on the trial side. Reliance is placed on the decisions in **Mohammed Harris v. Fathima** (1993 [1] KLT 558) and **S.Noordeen v. V.S.T. Venkita Reddiar** (1996 [1] KLT 761). As regards the objection of petitioners that attached property does not belong to ## **O.P(C) No.536 of 2010** ## -: 4 :- them is concerned, argument advanced by learned Senior Advocate is that executing court can order sale of only property of the judgment debtor and hence it is within the right of the judgment debtor to point out that the property being brought up for sale does not belong to him and if such an objection is raised, executing court has to conduct an enquiry whether the property attached and being brought up for sale did belong to the judgment debtor. 3. So far as the first question raised by the learned Senior Advocate is concerned, it is not disputed that when the property was placed under attachment before judgment petitioners had not raised any objection as to the attachability of the property. No doubt, attachment before judgment has to be distinguished from an attachment in execution. Attachment before judgment is not an attachment for the enforcement of a decree. It is only a step taken to prevent the debtor from delaying or obstructing such enforcement when the decree subsequently passed is sought to be executed. Attachment in execution is made for the immediate purpose of carrying the decree into execution. But petitioners had the opportunity of raising their objection to the attachment before judgment under Rule 5 of ## **O.P(C) No.536 of 2010** ## -: 5 :- Order XXXVIII of the Code and admittedly that was not done. Rule 11 of Order XXXVIII of the Code does not give petitioners a second opportunity to object to the attachment. It only relieves the decree holder of the burden to re-attach the property in execution if he were to proceed against the property in execution. A matter which might and ought to have been raised by way of objection when attachment before judgment was made, if not raised and thereby the attachment was made absolute, the judgment debtor cannot be heard to say that he has a right to object to the attachment (made before judgment) in the execution proceeding. The principle of constructive res judicata precludes judgment debtor from raising such an objection in execution. That principle would apply to the different stages of the same proceeding. **Mohammed Harris v. Fathima** (supra) relied by learned Senior Advocate has no application to the facts of the case since that was a case where the Division Bench of this Court found that since the order of conditional attachment was not accompanied by a direction to the defendants to show cause against furnishing security the order of attachment was a nullity and hence void. Sub-rule (4) of Rule 5 of Order XXXVIII of the Code introduced by Act 104 of 1976 with effect from ## **O.P(C) No.536 of 2010** ## -: 6 :- 01.02.1977 specifically says that if an order of attachment is made without complying with the provisions of sub-rule (1) of Rule 5 (which includes an order to furnish security or to show cause against furnishing security) such attachment shall be void. The Division Bench held that defect of order of attachment not being accompanied by an order to furnish security or show cause against furnishing security is not curable and hence the party who did not object to the attachment before judgment is not estopped from objecting to its validity after decree. I must bear in mind that the said decision was rendered on the finding that attachment before judgment was a nullity and hence void. If the attachment before judgment is a is nullity and hence void, it could be raised at any time the property is sought to be proceeded against in execution. 4. Another decision relied on by the learned Senior Advocate is **S.Noordeen v. V.S.T. Venkita Reddiar** (supra) where the Supreme Court has held referring to Rule 58 of Order XXI read with Rule 8 of Order XXXVIII of the Code that property attached before judgment and mentioned in the schedule became part of the compromise decree in that case. That decision nowhere says that a judgment debtor who has not objected to **O.P(C) No.536 of 2010** ## -: 7 :- the attachment of property before judgment gets a fresh right to object to the attachment when the property is proceeded against in execution. The Supreme Court in **Barkat Ali v. Badri Narain** (2008 [1] KLT 1022) said that if the judgment debtor had the opportunity of raising an objection which if he could have raised earlier, but failed to take such a plea, that plea cannot be allowed to be taken at a later stage on the principal of constructive res judicata. In the present case petitioners had the opportunity of raising objection to the attachment of property when the order of conditional attachment was issued and notice was served on them to furnish security or to show cause against furnishing security. Petitioners did not raise any objection. They are therefore, precluded from raising objection to the attachment so far as the order of attachment before judgment is not null or void, in execution on the principle of constructive res judicata. 5. The next question is whether objection raised by the petitioners could come within the mischief of Rule 58 of Order XXI of the Code. Though in the original counter statement filed by the petitioners they admitted right over the property attached and being brought up for sale, in the additional counter statement they contented that they have no right over the said ## **O.P(C) No.536 of 2010** -: 8 :- property and claimed that it belonged to the South Malabar Trading Corporation. I proceed on the basis of the contention so raised in the additional counter statement. 6. Under Rule 58 of Order XXI of the Code 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 mentioned therein. Sub-rule (2) states that 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 the sub-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. Sub-rule (5) is relevant. It reads, “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 be property in dispute but subject to the ## **O.P(C) No.536 of 2010** ## -: 9 :- result of such suit if any an order so refusing to entertain the claim or objection shall be conclusive.” (emphasis supplied) Sub-rule (5) would show that where the executing court has refused to entertain a claim or objection for any of the reasons given in the proviso to sub-rule (1) of Rule 58 of Order XXI, it is open to the party aggrieved to institute a suit to establish “the right which he claims to the property in dispute”. A claim or objection be it at the instance of the judgment debtor or a third party contemplates a situation where he makes a claim for himself over the property attached and contends that the property is not liable to be attached or sold. In other words Rule 58 of Order XXI contemplates a case where judgment debtor or the claimant is trying to enforce his right over the property and according to him that property is not attachable. Sub-rule (5) of Rule 58 of Order XXI indicates that the person making claim or objection, be it a claimant or judgment debtor must have a claim over the property. In that scheme of Rule 58 of Order XXI I am persuaded to think that when a judgment debtor says that he has no right or interest in the property attached and being ## **O.P(C) No.536 of 2010** ## -: 10 :- brought up for sale, that is not a claim or objection required to be entertained under Rule 58 of Order XXI of the Code, nor is such an objection required to be adjudicated by the executing court. I draw support for this view from a decision of a Division Bench of the High Court of Andhra Pradesh in **Jai Prakash Talkies** **v. Lakshmi Talkies** (1964 [II] Andhra Weekly Reporter 298). On exactly identical question the Division Bench of that High Court held that Rule 58 of Order XXI of the Code contemplated investigation of a claim when one is made, that provision implies that the claim should be made by a person putting forward a right or title in the property attached. An objection by the judgment debtor that he is not the owner thereof does not bring it within the terms of Rule 58 of Order XXI of the Code. It is held that it is not open to the judgment debtor to resist the attachment contending that the owner thereof is someone else and not the judgment debtor himself. The Division Bench observed that if per contra when a judgment debtor says that he has no right over the property and it belongs to somebody else and his objection is to be adjudicated, the result of the adjudication whatever it be is not binding on the person who according to the judgment debtor is the real owner. In **O.P(C) No.536 of 2010** ## -: 11 :- holding so the Division Bench distinguished the decision of the Bombay High Court in **Lakshman Dadaji v. Damodar** **Ambadas** (1891) ILR 15 Bombay 681) and drew support from the Division Bench decision of the Orissa High Court in **Khetramohan Nayak v. Sri.Sidha Kamal Nayana Ramanuj Das** (AIR 1956 Orissa 206). I do not find reason to differ from the view taken by the Andhra Pradesh High Court. When petitioners disclaimed right over the property attached, they could not make any claim or objection as contemplated under Rule 58 of Order XXI of the Code and request the executing court to conduct an enquiry. The questions of law raised are answered as above. 7. The result is that the order under challenge does not require interference. But I make it clear that the order of executing court or this judgment will not bar any other person making a claim over the property attached, if he is otherwise entitled to such course, as provided under law. Original Petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv