claim petition and stay application filed by subsequent purchaser - till dispute is finally adjudicated, stay of further execution proceeding has to be made - order of attachment and order raising attachment to be communicated to registrar.

Citation

CDJ 2008 MHC 4602

S.S. Karthikeyan Versus Sivasalam & Another

Head Note

Civil Procedure Code – Order 21 Rule 58, 58-A – Claim application - Application for stay of the sale proceedings dismissed – Hence this Revision - There must be sufficient evidence on record to show that the petitioner is a bonafide purchaser and that there is no collusion between him and the judgment debtor - Stay of further proceedings in the Execution Petition has to made, provided that the claim petition is filed by a bonafide person, which is necessary for the disposal of the claim petition and in such circumstances, the court ought to have decided the stay petition taking into consideration that the order of attachment over the petition mentioned property is based on the Encumbrance Certificate; if it is not reflected, then the court has to consider the matter by taking into account the material evidence. The provision under Section 58 of Order 21 C.P.C. makes it very clear that where any claim is preferred 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 contained therein. Also, the provisions make clear that this objection is subject to certain conditions. More so, the amended Rule 58-A also provides that the order of attachment as well as the order raising the attachment by removal, determination or removal passed under Rule 55 shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such order is situate. The above provisions have to be made applicable to the case on hand, but the court below, without looking into the provisions and records, particularly the Encumbrance Certificate, has simply rejected the said petition - The court below has not applied its mind in deciding the application for stay and it is necessary for the parties to let in proper evidence to decide the issue and in that view of the matter, the order of the Trial court dated 06.08.2008 made in E.A.No.243 of 2008 in E.P.No.52 of 1997 in O.S.No.346 of 1992 is set aside and the matter is remitted to the court below for fresh consideration after taking into account the evidence let in by both the parties. 

Para 9 to 11

Cases Referred:
1. P. Duraisamy vs. Sri Mahalakshmi Finance 1997 (I) MLJ 115
2. Sri Krishna Chit Funds (Sattur Private Limited), Sattur 2000 (II) CTC 524
3. Ravinder Kaur vs. Ashok Kumar and another (2003) 8 SCC 289
4. Usha Sinha vs. Dina Ram and others (2008) 7 SCC 144

Comparative Citations:
2008 (4) LW 1111, 2009 (2) MLJ 473,2008(6) CTC 636