- (1.) BY the impugned order dated 03.04.2008, the application filed by the appellants � objectors under Order 21 Rule 58 CPC was dismissed by learned Additional District Judge No.1, Bhilwara.
(2.) LEARNED counsel for the objector � appellant, Mr. Sandeep Saruparia submitted that the appellants-objectors have their respective shares in the suit property, therefore, same cannot be put to auction to satisfy the money decree. Although, the learned court below affirmatively has held that appellants-objectors are the co-owners of the attached property, however, the court below has seriously erred while observing that since judgment debtor has his share in the attached property, therefore, the same can be attached. The objections have wrongly been decided by the court below and since the proceedings under Order 21 Rule 58 CPC are akin to a fresh suit, the wrong determination of the share of the objector deserves to be corrected in the present appeal. Having heard the learned counsel, this Court is of the opinion that the correctness of the share of the appellants�objectors is not within the scope of the objections under Order 21 Rule 58 CPC. It is not a partition suit filed by the appellants claiming partition of the suit property, and which could be decided after allowing the respective parties to lead their evidence in respect of the nature of the suit property and their shares in the suit property as per Schedule I of the Hindu Succession Act, 1956, particularly after its amendment in the year 2005. Admittedly, the judgment-debtor has a share in the property in question. The auction purchaser, if any, will step in the shoes of the judgment debtor only and of-course his/her/their share qua the share of the appellants- objectors has to be determined by the Court in the appropriate proceedings, but the execution of the decree cannot be stopped for the same. Consequently, while giving a liberty to the appellants�objectors to file a proper partition suit for determination of correct share, this Court is not inclined to interfere in the impugned order passed by the learned executing court. The appeal of appellants-objectors is devoid of merit and the same is hereby dismissed. No costs. A copy of the judgment be sent to the learned executing court below and to the opposite party. No costs. ;