- (1.) The plaintiff Sheela Devi filed the suit for declaration to the effect that she was owner-in-possession of the suit land. She also sought the relief of permanent injunction restraining the defendants/respondents from getting the land attached in execution of the decree for the recovery of Rs. 9200/-. It was alleged by the plaintiff that she became owner of the property in dispute by virtue of decree dated 18th February, 1975 (Ex. P1) which was passed against her husband Amar Nath (now deceased). According to the plaintiff, the defendants/respondents had obtained a decree for the recovery of an amount from her husband Amar Nath and they wanted the land in dispute to be auctioned for the recovery of those amounts. According to the plaintiff, since she had become owner of the suit property the said land was not liable to attachment and sale. The suit was contested, inter alia, on the ground that Amar Nath deceased, husband of the plaintiff, was the owner-in-possession of the suit land and that the decree obtained by the plaintiff on 18th February, 1975 was null and void. Moreover, the suit in the present form was not maintainable because earlier the plaintiff had filed objections in the executing Court which were dismissed and now the plaintiff was not entitled to file a separate suit. On the pleadings of the parties, the trial Court framed the issues out of which Issue No. 3 which is to the following effect was treated to be preliminary :- "Whether the present suit is maintainable ?" Both the Courts below have found that the present suit was not maintainable in view of the provisions of Order 21, Rule 58, C.P.C. Admittedly, the judgment-debtor (plaintiff) against whom the decree was passed filed her objection petition in the executing Court earlier which was dismissed on 24th April, 1982, and again on 13th August, 1982, vide copy Ex. D1. Thus, the question to be determined in this appeal is that when the objections under Order 21 Rule 58, C.P.C., as to the attachment of the suit property in execution of the decree has already been dismissed by the executing Court, whether the present suit as such was maintainable or not.
(2.) Order 21, Rule 58(5), C.P.C., provides that "when a claim or an objection is preferred and the Court under the proviso to sub-rule (1), refuses to enterain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive." Proviso to sub-rule (1) is as under : "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) Where the Court considers that the claim or objection was designedly or unnecessarily delayed." Now, in order to maintain the suit it was for the plaintiff to prove that the objections filed by her earlier were not entertained because the same were designedly or unnecessarily delayed. From a perusal of the order dated 24th April, 1982, dismissing objections purporting to have been filed under Section 60/47, C.P.C., it could not be agitated that the same were dismissed having been designedly or unnecessarily delayed. The second objection petition was dismissed vide copy Ex. D1, dated 13th August, 1982, because of the objections having been dismissed earlier vide order dated 24th April, 1982. That being so, the filing of the present suit is clearly barred under Rule 58(2) of Order 21, C.P.C. Thus, the view take by the Courts below is perfectly in accordance with law.
(3.) Moreover, in view of the Division Bench judgment of this Court in Avinash Chander v. Mohan Lal, 1984 AIR(P&H) 391, it is no more disputed that the objections under Order 21, rule 58, C.P.C. to the attachment of the property in the execution of a decree could be filed on behalf of the judgment-debtor as well as by the third person, and the same were to be decided accordingly under the said provisions and not by a separate suit. In this view of the matter, the appeal fails and is dismissed with no order as to costs. C.M. is dismissed as having become infructuous.;