Decided on July 12,1973

Nirode Ranjan Dey Appellant
Union of India (UOI) and others Respondents


P.K. Goswami, C.J. - (1.) THIS Civil Revision is directed against an order of the learned Munsiff, Kamalpur, entertaining an objection of the opposite party under Order 21. Rule 58, Civil Procedure Code, with regard to attachment of certain property made in the course of execution in Execution Case No. 4 of 1969 arising out of Money Suit No. 2 of 1968.
(2.) THE petitioner before this Court is the decree -holder. In the course of the aforesaid execution proceeding certain immovable property was attached on 20th March, 1969 and auction sale took place on 15th September, 1970 and it was posted for confirmation of sale to 30th October, 1970. On that day the order -sheet shows that a copy of an application addressed by the Executive Engineer to the District Magistrate was received by the Munsiff by post and he fixed 21 -11 -1970 for orders, although it was hardly necessary for him to take notice of the same in the absence of a Proper application. However, on the 21st November, 1970, the Union of India filed an application before the Court under Order 21, Rule 58, objecting to the attachment of the said property following which the same had been sold. The ground given apparently was that in an arbitration proceeding between the judgment -debtor and the Union of India status quo was ordered to be maintained by the learned Additional Subordinate Judge. The learned Munsiff, therefore, felt helpless and stayed further proceedings and did not even intend to adjudicate upon the claim of the Union of India so far made in the application under Order 21, Rule 58. C.P.C. The short point that arises for consideration in this case is whether after the sale of the attached property had taken place the application under Order 21, Rule 58. C.P.C. is maintainable.
(3.) MR . J. K. Roy. learned counsel for the petitioner, submits that the executing Court had no jurisdiction to entertain such an application after the sale had taken place on 15th September, 1970. On the other hand. Mr. R. Ghosh, learned Government Advocate, representing the Union of India, submits that there is no error of jurisdiction in entertaining the application, although he very frankly submits that the Court below need not have staved its hands but should have adjudicated the matter.;

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