Decided on April 15,1992

A.GEETA Appellant


V.Neeladri Rao - (1.)This Second appeal was preferred by the applicant in E.A.No.179 of 1982 in O.E.P.10 of 1982 in O.S.No.196/1972 on the file of the District Munsif Court Vayalapadu. Respondent No.1 herein obtained the decree in OS.No.l96/1972 against respondent No.2 herein on 30-11-1972. That decree had become final. Respondent No.1 filed the E.P. in execution of the decree and the immoveable property referred to there in was attached on 5-8-1978. The sale was held on 21-8-1982 and it was posted to 21-10-1982 for confirmation. Two days earlier to it, i.e., on 19-10-1982, the appellant herein filed E.A.No.179/1982 under Order 21, Rule 58 CPC claiming the attached property as heirs in pursuance of Ex. A.1 the registered gift deed dt.14-1-1976 executed by respondent No.2, in her favour. The executing court held that the E.A., is maintainable but dismissed it by holding that Ex.A.l was executed in fraud of the creditors of respondent No.2. The appellate Court also discussed in regard to the merits of the case and confirmed the finding of the executing Court that Ex.A.l was executed to defraud the creditors of respondent No.2. The Judgment and decree under appeal, A.S.No.93 of 1980 are challenged in this Second appeal.
(2.)Proviso (a) to Order 21, Rule 58(1) CPC lays down that no claim or objection under Order 21, Rule 58(1) CPC shall be entertained where, before the claim is preferred or objection is made, the property attached has already been sold and the relevant provisions reads as under:
"58. Adjudication of claims to, or objections to attachment of property (1) 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 herein contained: Provided that no such claim or objection shall be entertained- (a) Where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) ......

(3.)The learned counsel for the appellant contended that the words "sold" referred to, in proviso (a) is sale on confirmation. But I feel that the said contention is not tenable. After the confirmation of sale under Order 21, Rule 92 CPC, the executing Court becomes functus officio. The confirmation under Order 21, Rule 92 CPC can be set aside only by way of an order consequential to the order under appeal, second appeal or revision as against the orders under Order 21, Rules 89,90 and 91 or Order 21, Rule 58 CPC. Hence, the word "sold" referred to in proviso (a) had to be construed as sale held by the executing Court and it is not a case of sale after confirmation.

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