A GEETA Vs. MOGALI RAMANJANEYULU CHETTY
HIGH COURT OF ANDHRA PRADESH
MOGALI RAMANJANEYULU CHETTY
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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
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
(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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