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Judgment
Heard Mr. S. K. Ghosh, leaned counsel for the petitioner and Mr. M. H. Rajbarbhuiyan, learned counsel for the respondent Nos. 2 and 4, Mr. H. Baruah, learned counsel for respondent Nos. 5 and 7 and Ms. S. Dasgupta, learned counsel for respondent No.3 and the impleaded respondents.
This application has been filed by the petitioner challenging the order dated 20.03.2023 passed by the Learned Munsiff No. 1, Hailakandi District in Title Execution Case No. 7 of 2015 rejecting the application filed by the petitioner under Order 21 Rule 58 CPC and attaching the property a fresh without deciding the petition under Order 21 Rule 58 of the CPC.
The case of the petitioner herein is that the petitioner along with the opposite parties /respondents had filed a Title Suit No. 43/1990 against the performa opposite parties praying for declaration of right, title, interest and recovery of khas possession of the suit land. The said suit was decreed in favour of the petitioner and the opposite party/respondents Nos. 1 to 7 on 15/7/2002. The performa opposite parties filed a title appeal against the said order dated 15/7/2002 in the court of Learned Civil Judge, Hailakandi but the said appeal was dismissed.
Being aggrieved, the proforma opposite parties again filed a second appeal, i.e., RSA 2007/2003 before this Court and the second appeal was also dismissed by this Court. After dismissal of the second appeal being RSA 207/2003 by this Court, the Title Execution case No. 7/2015 was filed by the decree holders for execution of the judgment and decree before the learned Munsiff on 24/9/2015 against the proforma opposite parties. After filing of the said title execution case 7 of 2015, the judgment debtors handed over possession of the suit land to the petitioner. Accordingly, the decree has been satisfied and the judgment debtor is not in possession over the suit land.
After the judgment debtor handed over possession of the suit land to the petitioner, the opposite party/decree holder Nos. 1 to 7 filed an application before the learned Executing Court under Order 21 Rule 54 read with Section 151 CPC praying for attachment of the suit land. Thereafter, the learned Munsiff passed an order on 8/6/2017 attaching the suit property without considering the provision of Order 21 Rule 58 of the CPC although Order 21 Rule 54 was not maintainable in the instant case.
The petitioner by filing an application under Order 21 Rule 58 prayed for adjudication under the provisions of Order 21 Rule 58 inasmuch as the decree holder/petitioner had already got possession of the suit property and the said property had to be divided amongst the decree holders in accordance with Mohammadan law. However, the said application was rejected by the learned Executing Court by an order dated 8/6/2017. Against the said order of rejection, the petitioner came before this Court by filing CRP(IO) 171/2017 under Article 227 of the Constitution of India. The said CRP(IO) 171/2017 was disposed of by order dated 4.8.2017 by holding that any party aggrieved with an attachment order with respect to the decreetal property has the right to agitate before the Executing Court under Order 21 Rule 58 of the CPC. The petition was therefore disposed of with the liberty to the petitioner to raise an objection against the attachment order before the Executing Court under Order 21 Rule 58 of the CPC.
Pursuant to the order of this Court dated 04.08.2017 passed in CRP(IO) 171/2017, the petitioner preferred an application under Order 21 Rule 58 which was disposed of by the Executing Court by order dated 8/5/2019. In the order dated 8/5/2019, the Executing Court held that the original Title Suit had been filed for declaration of right, title and interest along with delivery of khash possession. In that case, the delivery of possession was to be effected in relation to all the decree holders and not only the petitioner. Hence, the application of the petitioner was dismissed stating that it was legally untenable and the petitioner was directed not to file such kind of petitions in future to frustrate the purpose of the execution case.
Being aggrieved, the petitioner came before this Court again by filing CRP(IO)263/19. The said CRP(IO)263/19 was disposed of on 22/7/22 granting liberty to the petitioner to file appropriate application in terms of Order 21 Rule 58 seeking an adjudication in terms with sub-rule 2 and 3 of Order 21 Rule 58 of the Code. The petitioner was given the liberty to file the application within one month from the date of the order. It was also directed that the attachment order passed by the Executing Court shall continue till the disposal of the said application, if so filed. And if no application is filed within the said period, the Court shall adjudicate the entitlement of the decree holders in respect to the suit property. While disposing of the said CRP(IO) 263/2019, this Court also made an observation that the provisions of Order 21 Rule 58 and more particularly Sub Rule 2 of Rule 58 shows that 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 the Rule 58 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.
It was further held that under such circumstances, the Court while adjudicating an application under Order 21 Rule 58 of the CPC as regards the questions involved therein has to take into account the importance of an adjudication under Order 21 Rule 58 of the CPC in respect to a property which is being attached.
Thereafter, the petitioner again filed another application under Order 21, Rule 58 as allowed by this court in CRP(IO) 263/2019. The parties were heard and by the impugned order dated 20/3/2023, the said application was again rejected. The Learned Executing Court held that an attachment order under Order 21 Rule 54 of the CPC can be made only against a judgment debtor and not against a decree holder. It held that the petitioner being a decree holder received the decreetal property from the judgment debtor and the order dated 8/6/2017 was directed against the petitioner who is a decree holder and not the judgment debtor. Hence, the attachment order dated 8/6/17 was not liable to be vacated.
The trial court also held that the decree was passed in favour of 9 decree holders and they are all entitled to recover possession of the decreetal land. The Executing Court was also of the view that the petitioner is one of the decree holders but she is not entitled to take possession of the entire decreetal land depriving the other decree holders and by doing so the petitioner has acted as an agent of the judgment debtor and accordingly, to prevent multiplicity of litigation, the application was dismissed stating the dismissal shall not prejudicially affect the petitioner as she will also get her share upon execution of the decree.
Being aggrieved, the petitioner has come before this Court. The main ground is that the Executing Court has committed an error by attaching the suit property as the judgment debtor has already handed over possession of the suit land to the petitioner on 10/8/2016 and since then the petitioner is in possession over the suit land and as such the attachment was liable to be set aside. Learned counsel for the petitioner has also submitted that the learned Executing Court has passed the impugned order without considering the provisions of Order 21, Rule 58 of the CPC as the decree is an inseparable one and the possession of one of the co-plaintiffs amounts to possession by all the plaintiffs as a constructive possession. He submits that the decree being an inseparable one and immediately after handing over possession to one of the co-plaintiffs, the entire decree has been satisfied and as such proceeding of the execution case is not maintainable.
It is also the submission of learned counsel for the petitioner that the Executing Court has committed an illegality by not deciding the case in terms of the order dated 22/7/2002 passed by this Court in CRP(IO) 263/2019. It is also the submission of the learner counsel that the decree has already been satisfied by handing over possession of the suit property to the petitioner and the petitioner has been possessing the suit property from 10/8/2016 and unless the impugned order dated 20/3/2023 passed in petition No. 435/15 in Title Execution Case 7 of 2015 is not quashed and set aside, great prejudice will be caused to the petitioner.
The learned counsel for the petitioner has relied on the case of Dayashankar Nandalal versus Harishankar Ganpatram Thakkar reported in 1962 0 AIR Gujarat (Guj) 319 wherein the Gujarat High Court has held that the scope of investigation of a claim or objection under Order 21 Rule 58 CPC is prescribed in Order 21 Rule 58, 59, 60, and 63 of the CPC. He submits basing on the said judgment that the CPC does not prescribe the extent to which the investigation should go and though in some cases it may be very proper that there should be a full investigation as if a suit was instituted for the very purpose of trying the question, in other cases it may also be more prudent and proper to deliver an opinion on such facts which are before the Executing Court.
Learned counsel further relies on the case of Ganesan Prabhu versus MS Dhanabakkim Enterprise, Chennai a judgment passed by the Madras High Court and reported in 2025 Supreme(Mad) 2330 wherein the High Court had held that in a case involving ownership of immovable property, it is clear that an investigation under Order 21 Rule 58 CPC should be full, realistic and after giving adequate opportunities to the parties concerned to prove their respective claims, right, title and interest in the property attached. The words used in Order 21 Rule 58 CPC are clear that an adjudication should take place and it also shows that the discretion is vested with the court to decide in what manner such adjudication should take place.
Per contra, the learned counsel for the respondent Nos. 1 to 4 has objected to the prayer and submissions made by the petitioner herein on the ground that the learned trial court has not committed any illegality or perversity by passing the impugned order dated 20/3/2023 in the petition No. 435/15 filed by the petitioner under Order 21 Rule 58 of the CPC. Learned counsel submits that the opposite parties are also the decree holders and in total there are nine decree holders and the petitioner is one of the decree holder. He submits that the petitioner in connivance with the judgment debtor had managed to get possession of the decreetal property illegally behind the back of the other decree holders. He submits that the original decree was passed on 15/7/2002 and till date the decree cannot be executed and allowing the instant petition would mean that the execution proceedings would be prolonged even further and great prejudice would be caused to the other decree holders if the instant petition is allowed. Learned counsel further submits that the petitioner being one of the decree holders is not entitled to take possession of the entire decreetal land and even in the execution proceedings the Executing Court can allot the shares of all the decree holders in the suit property.
The learned counsel appearing for the respondent Nos. 5 and 7 has also adopted the submissions made by the learned counsel for the respondents 1 to 4 and further submits that they are also co-decree holders and the petitioner cannot be allowed to manipulate the entire execution proceedings as though she is the lone decree holder. He has also submitted that even in the execution proceedings, the allotment of the shares in the decreetal suit property can be made by the Executing Court without resorting to the provisions of Order 21, Rule 58 of the CPC and submits that the petitioner will also get her share once the decree is allowed to be executed
This court has duly considered the submissions of the learned counsel for the parties and also perused the pleadings and the authorities relied upon by the by the petitioner.
At the outset, it is the view of this Court that an application under Order 21 Rule 58 CPC cannot be decided summarily merely by looking at the decree or the attachment order. The Executing Court has to adjudicate the applicant's right, title or interest in the attached property where the question is relevant as to whether the property is liable to be attached. The original decree dated 15/7/2002 has already declared that the 9 decree holders are jointly entitled to the decreed property. The Executing Court has to execute the decree as it stands.
There is nothing in Rule 58 of Order 21 CPC which confines a claim/objection only to a stranger to the decree. The question is whether the applicant is asserting that the property attached or his interest in it is not liable to be dealt with in the manner proposed in the execution. Therefore, the Executing Court cannot simply ignore the application merely because the applicant is himself a decree holder. The court should examine whether the objection genuinely falls within Rule 58 of Order 21 but Rule 58 does not permit the Executing Court to amend or alter the decree. It is an admitted fact that the decree dated 15/7/2002 has not apportioned the shares to which the decree holders are entitled and the decree does not specify their shares. In such event, the Executing Court would not be able to execute the decree satisfactorily.
This Court has also taken note of the direction passed by this Court in order dated 22/7/2022 in CRP(IO) 263 of 2019. In the opinion of this Court, the learned Trial Court could not have circumvented the direction given by this Court in the said order dated 22/7/2022. This Court in the said order had categorically mentioned that the provisions of Order 21 rule 58 CPC particularly sub-rule 2, shows that all the questions including questions relating to right, title or interest in the property attached has to be determined by the Court in the execution case itself and not by a separate suit. In an application under Order 21 Rule 58 of the CPC the Executing Court has to take into account the importance of an adjudication under Order 21, Rule 58 in respect of a property which is being attached.
The case of the petitioner herein is that the judgment debtor had given the property exclusively to her and therefore, the other decree holders cannot execute against it without there being a specification of the shares of each decree holder. In that case, it is potentially a title/objection concerning the attached property which Order 21, Rule 58 CPC expressly contemplates. The rule provides that questions relating to right, title or interest in the attached property are to be determined by the Executing Court rather than by a separate suit.
In view of the observations above, it is the view of this Court that the trial court could not have rejected the application under order 21 Rule 58 straight away just because the applicant happens to be one of the decree holders. Since the application has disclosed a genuine objection to the attachment, the Court should have adjudicated upon it. More so, in view of the fact that the original decree dated 15/7/2002 did not specifically mentioned the shares of each decree holder in the decreetal property.
Resultantly, the petition succeeds and the impugned order dated 20/3/2023, passed in petition No. 435/15 arising out of Title Execution Suit 07/2015 is set aside and quashed.
The petitioner shall file a fresh application under Order 21 Rule 58 of the CPC and the Executing Court shall adopt the procedure provided in order 21 Rule 58 and decide the right/rights of the decree holders and their shares in the said proceeding.
With the above direction and observation this petition is disposed of.
The parties shall appear before the trial court on 14/09/2026 and the Executing Court shall dispose of the said application as expeditiously as possible. The attachment order dated 08.06.2017 shall continue till the Executing Court dispose the application under Order 21 Rule 58 CPC.