GOYAL, J. - (1.) THIS appeal has been filed by the plaintiff-decree holder against the judgment dated 16. 11. 2007 passed by Additional District Judge No. 3, Kota in Civil Objection No. 73/2007 whereby objection filed by the objector under Order 21 Rule 58 of the Code of Civil Procedure (for short the 'code') in Execution No. 2/2007 was allowed.
(2.) THE brief facts giving rise to this appeal are that appellant-decree holder filed a civil suit for recovery of money against the judgment-debtor Sh. Ghanshyam Biyani which was decreed exparte in favour of the plaintiff-decree holder and against the judgment-debtor Sh. Ghanshyam Biyani, father of the objector-respondent and the decree was passed for a sum of Rs. 1,20,876/- with cost of the suit and 9% interest per annum. THE appellant-plaintiff-decree holder filed an execution which was registered as Execution No. 2/2007 in the Court of Additional District Judge No. 3, Kota and certain moveable assets of the judgment-debtor Sh. Ghanshyam Biyani were attached in execution. THEreafter on 18/10/2007 Miss. Krishna Biyani, daughter of the judgment-debtor, filed objection application under Order 21 Rule 58 of the Code stating therein that the attached moveable property in the execution proceedings belongs to her and she has purchased all the attached articles by her tuition earnings, therefore, she prayed to release the said moveable property from the attachment and also prayed for handing over the same to her. THE plaintiff-decree holder filed reply to the objection application and denied the averments made in the objection application. THE learned Executing Court after hearing the parties allowed the application of objector-respondent. Heard learned counsel for the parties and perused the impugned judgment. It was inter alia contended by the counsel for the appellant that objector-respondent is an unmarried daughter and a member of the joint family of judgment-debtor Sh. Ghanshyam Biyani and the attached moveable articles belong to the judgment-debtor which were attached from his possession and just to save the said property from the attachment this objection has been filed by respondent-Miss. Krishna Biyani in collusion with her father- judgment debtor and prepared some fake documents. It was then submitted that the objection under Order 21 Rule 58 of the Code is alike a suit and decision on merit attains the finality subject to appeal and no fresh suit can be brought in regard to the subject matter of such objections but the learned Executing Court without considering the provisions of Order 21 Rule 58 of the Code and further without affording any opportunity of leading the evidence summarily on the basis of some photostat copies of the bills decided the objection application which is not warranted in law. Reliance was placed on the judgment delivered in the case of Sargunam vs. Union of India and others, reported in AIR 1986 Madras 301. Per contra, learned counsel for the respondent-objector contended that attached moveable property belongs to the objector and after satisfying from the original bills the learned Executing Court rightly ordered for releasing the attached property from the attachment. It was then contended that when from the documentary evidence the fact situation becomes crystal clear then formal and oral evidence is not required. In support of the contentions reliance was placed on the judgment delivered in the case of D. L. Sridhar vs. C. R. Chandramohan, reported in AIR 2008 Karnataka 51 and Vannarakkal Kallalathil Sreedharan vs. Chandramaath Balakrishnan and another, reported in (1990) 3 Supreme Court Cases 291. Before adverting to the respective submissions advanced at the bar, it will be useful to refer the provisions of the Code having bearing on the question to be decided in this case. Order 21 deals with execution of decree and Rule 58 of the Code provides the provisions for adjudication of claim and objections which were filed against the attachment of the property in execution. Rule 58 of Order 21 of the Code as amended/substituted by the Amendment Act of 1976 (Act 104 of 1976) is as follows :-      " 58 (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) Where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title, or interest in the property attached), arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to sub-rule (2) the Court shall, in accordance with such determination (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection ; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court under the proviso to subrule (1), refuses, to entertain 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. "
(3.) ACCORDING to the amending provision, all questions including questions of right, title or interest have to be gone into while deciding the claim or objection in a full-fledged manner and not in a summary manner as provided under the unamended provision and a right of appeal is provided against an order passed adjudicating the claim and objections and as an exception remedy of suit has been provided only in case of non-entertainment of the claim or objection. In this backdrop of the above legal position, in the instant case, it transpires from the impugned judgment that no opportunity of leading the evidence has been provided by the Executing Court and objections were allowed while deciding the objection petition summarily, only keeping in view certain bills which were not supported even by the formal affidavit. In my view after the amendment of 1976 the judgment passed under Order 21 Rule 58 of the Code has attained finality subject to appeal and such judgment is akin and treated like a decree. Therefore, such objection application ought not to have been disposed of by summary manner but law and principle of natural justice require that opportunity of leading evidence ought to have been granted to the parties. In Sargunam's case (supra) it was held as under :-      " Certain changes have been effected in R. 58 of O. 21, in order to provide a more effective remedy for the parties and to avoid multiplicity of proceedings and to give finality to orders passed under the rule, subject to the limitations contained in the rule, viz. , the order being liable to be challenged in appeal etc. The rule does not say anything about the enquiry being of a summary nature. It is open to a party to adduce evidence to prove his claim and there is nothing in the section to make the Court adopt a summary procedure, when dealing with an application under O. 21, R. 58. The judgment relied upon by the counsel for respondent- objector does not help her in the fact situation of the present case since the cited cases only deal with the effect of agreement of sale of the attached property to the third person objector prior to attachment. The said question is not directly involved in this matter. ;