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Judgment
Mohamed Anwar, J.—Heard the arguments on both sides.
The Petitioner who was third party applicant in Execution Case No. 1143 of 1999 has preferred this revision challenging the Executing Court''s order dated 12.10.1999 made therein rejecting his application under Order 21, Rule 58 Code of Civil Procedure. The challenge to the impugned order is based on the ground that the trial Court has failed to exercise its jurisdiction vested in it under Order 21, Rule 58 CPC to hold an enquiry on the said application in compliance with that provision, before passing the impugned order.
Mr. Prabhakar, learned Counsel for Petitioner, proposing to draw support from a decision of Andhra Pradesh High Court in K. Venkarayappa Vs. Ellen Industries, Coimbatore and Others, , assailed the legality of the impugned order on the aforestated ground.
Per contra, learned Counsel for Respondent-decree holder maintained that no revision does lie from the impugned order in that by Sub-rule (4) of Order 21, Rule 58 any order made on an application filed under Sub-rule (1) of Order 21, Rule 58 by Executing Court is an appealable order.
It is an undisputed fact that the said Execution Case No. 1143 of 1999 was filed by Respondent-1 decree holder to execute the money decree against Respondent-2 M/s. Balaji Electronics for recovery of the decretal money. During pendency of the execution proceedings on an application dated 11.8.1999 of the decree holder made u/s 151 Code of Civil Procedure, the amount lying in Account No. 1686 standing in the name of M/s. Manjog Investments at Sangli Bank Limited, Gandhinagar Branch, Bangalore, was attached through execution of the Executing Court''s warrant. Subsequently, Petitioner made his application under Order 21, Rule 58 CPC praying to raise the attachment of the said bank Account No. 1686 of "M/s. Sangli Bank Limited, Gandhinagar, Bangalore"., swearing to the facts in supporting affidavit that he is neither a proprietor nor a partner of the judgment debtor firm "M/s. Bajaj Electronics". and that he is the proprietor of "M/s. Manjog Investments". which firm has nothing to do whatever with the transactions or business of the judgment debtor firm.
The Court below while dismissing the said application by its impugned order has made patently erroneous observations therein as under:
...this Court ultimately on the application of the decree-holder at I.A. No. 1 issued an order of attachment of the amount in the account of MANJOG GROUP OF COMPANIES with Sangli Bank, Bangalore at Gandhinagar Branch. The main contention raised in the objection by way of affidavit in support of the application of the applicant/objector filed u/s 151 Code of Civil Procedure, to recall the order of attachment is that the said account pertains to MANJOG GROUP OF COMPANIES and the applicant is the Chairman. ....I do not hold any agreement with this contention raised by the applicant in his affidavit objection for a simple reason that Bajaj Electronics Company who is the judgment-debtor in this case who has suffered the decree is one of which companies coming under the Group of MANJOG GROUP OF COMPANIES.
Evidently, as could be seen from the prayer made in I.A.I of decree holder, which is referred to in the above quoted portion of the impugned order, the said attached account No. 1686 is not the account of "MANJOG GROUP OF COMPANIES". as has been stated by the learned Judge of Executing Court, but in fact it is the account of "M/s. MANJOG INVESTMENTS". at the Sangli Bank Limited, Gandhinagar Branch, as asserted in the application of the Petitioner that was filed under Order 21, Rule 58 Code of Civil Procedure. It was therefore incumbent on the court below to hold an enquiry on the said application of the Petitioner as enjoined by the provisions of Order 21, Rule 58 CPC which it has failed to do. Thus, the Court below has failed to exercise the jurisdiction vested in it in passing the impugned order. In that view of the matter, as has been held by the Andhra Pradesh High Court in K. Venkarayappa, the revision from such an order made under Order 21, Rule 58 is competent. This apart, for the reasons stated above the impugned order of the Court below cannot be sustained in law.
Hence, the revision is allowed. The impugned order is set aside. The matter is remitted to the Court below with a direction to proceed to dispose of Petitioner''s application filed under Order 21, Rule 58 CPC in Execution Case No. 1143 of 1999 after holding an enquiry in accordance with law and with a fresh speaking order. The said application may be registered as a Miscellaneous proceeding for the purpose of enquiry and disposal thereof.
Parties to bear their own costs in the facts and circumstances.