Bombay High Court
Savita W/O Shankarrao Kothare vs Dr. Mrs. Sulbha W/O. Prakash Meshram on 20 March, 2025
2025:BHC-NAG:3798
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.412 OF 2022
1. Savita W/o Shankarrao Kothare
Aged about 57 years, Occ: Housewife,
2. Shankarrao S/o Haribhau Kothare
(dead) Original Judgment Debtor
3. Dhanashree Amol Barhate
Aged about 35 years, Occ: Household
(L.R. of Shri Shankarrao Kothare)
4. Shri Sumedh S/o Shankarrao Kothare,
Aged about 26 years, Occ: Mentally Retarded,
(LR of Shri Shankarrao Kothare, represented
through his mother Smt. Savita Shankarrao Kothare)
5. Rupali W/o Pradeep Dahiwade,
Aged about 33 years, Occ: Employed,
(LR of Shri Shankarrao Kothare)
All R/o Plot No.57, Dambhare Layout,
In front of NIT Garden Trimurti Nagar, Nagpur
Dist. Nagpur. ...APPELLANTS
(Orig. Objectors)
On R.A.
...V E R S U S...
1. Dr. Mrs. Sulbha W/o Prakash
Meshram, Aged about 48 years,
Occ: Medical Practitioner,
Original Plaintiff.
2. Dr. Prakash S/o Dashrath Meshram
Aged about 53 years, Occ: Medical Practitioner
Respondent Nos.1&2 R/o 267,
Loksewa Nagar, Jaitala,
Khamla Road, Bhamti, Nagpur.
...RESPONDENTS
(Orig. Decree holders)
On R.A.
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Shri Shakil Deshmukh, Advocate for Appellants.
Shri P.S. Sadavarte, Advocate for respondents.
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CORAM :- M.W. CHANDWANI, J.
DATE :- 20/03/2025
ORAL JUDGMENT:
1. By order dated 18.11.2022, the following substantial
questions of law were framed :
“(i) Whether it was proper on the part of the
executing court to not to frame any issue on the
objection filed by the present appellants? Whether
the First Appellate Court was right in not reversing
the impugned order dated 08/03/2018 below Exh.8
on the ground that issues were not framed?
(ii) Whether the executing court had gone in to the
merits of the case when in Paragraph No.8 of the
impugned order it specifically stated that the
submission made in the application/ objection needs
to be taken into consideration? And whether it was
proper on the part of the First Appellate Court, to
hold that the First appeal was not maintainable in
such facts and circumstances?
(iii)Whether the finding of the first appellate Court
that the appeal is not maintainable in the present
case is legal and proper?”
2. With the consent of parties, the matter is taken up for
final hearing at the admission stage. It is not necessary to go into
the matrix of the case in detail, it will suffice to say that the
money decree against deceased Shankarrao Kothare, the original
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defendant no.1 and other 10 defendants was passed, directing
them to pay the amount of Rs.8,75,000/- alongwith interest
@18% per annum from 01.01.2004 till realization of the amount.
The execution proceedings bearing Special Darkhast Not.6/2015
came to be filed. The appellant-wife of deceased Shankarrao
Kothare (original defendant no.1) filed an application (Exh.8) on
26.11.2015 in execution proceedings before the executing Court
stating therein that NMC House No.2001/57 on Plot No.57, Ward
No.74, in the Layout of M/s. Magaswargiy Rail Karmachari Gruh
Nirman Swanstha of Mouza Parsodi, Nagpur as well as movable
property kept in the said house belongs to her and thereofre, it
should not be attached in the decree against her huband. Pending
the said objection, original defendant no.1- Shankarrao died on
13.06.2016. His legal representatives were brought on record
including the present appellants.
3. The learned executing Court by order dated 08.03.2018
passed below Exh.8,rejecting the said application, allowed the
application for attachment below Exh.17 and thereby attached the
property subject to filing of the details of immovable property
owned by the judgment debtor. It is to be mentioned here that on
24.04.2018 respondents filed another application (Exh.28) for
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attachment of the very same property which was mentioned in the
objection of the appellants (Exh.8) which came to be allowed on
very same day.
4. An unsuccessful attempt has been made before the
learned District Judge. Feeling aggrieved with the dismissal of
objection and allowing the application below Exh.17, the present
appeal came to be filed.
5. Mr. Deshmukh, learned counsel for the appellants
vehemently submitted that the trial Court as well as the appellate
Court misconstrued Order XXI Rule 58 of the Code of Civil
Procedure (for short “CPC“). According to him, the learned trial
Court ought to have treated this objection as regular civil appeal,
ought to have framed issues and liberty to adduce evidence ought
to have been granted to the appellants but this aspect has not
been considered by the executing Court as well as the appellate
Court. Rather, the appellate Court concluded that a first appeal is
not maintainable against rejection of objection. The sum and
substance of the argument of the learned counsel for the
appellants is that, if the objection has not been entertained on the
premise of proviso to sub-rule (1) of Rule 58 of Order XXI of the
CPC then the remedy is filing of a separate suit and if the
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objection is not covered by the proviso clause then it is mandatory
for the executing Court to give a chance to the parties to the suit
to lead evidence, if any. According to him, the objection as well as
the appeal has been dismissed on the wrong premise and hence,
they are required to be set aside.
6. Per contra, Mr. Sadavarte, learned counsel appearing for
the respondents vehemently submitted that the objection below
Exh.8 was filed before the executing Court even before the death
of original defendant no.1-Shankarrao. Therefore, the executing
Court as well as the first appellate Court has rightly dismissed the
application as being premature. According to him, there is no
merit in the appeal and the executing Court as well as the first
appellate Court has rightly dismissed the objection on the ground
that inspite of giving opportunity, the appellant failed to adduce
the evidence and failed to prove that the property exclusively
belongs to her. Therefore, he seeks dismissal of the appeal.
7. Having heard the learned counsel for the respective
parties, having gone through the orders impugned dated
08.03.2018 and the material available on record, it transpires that
by filing application/objection the appellant contended that the
house property mentioned in the objection exclusively belongs to
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her and therefore, it should not be attached. It is to be noted here
that, at the time of filing of objection original defendant no.1-
Shankar was alive and after his death, the appellants were added
as the legal representatives of deceased Shankarrao. Thus, it
appears that the entire case revolves around Order XXI Rule 58;
therefore, it is necessary to reproduce the same as under:
“ORDER XXI
EXECUTION OF DECREES AND ORDER
Payment under decree
58. Adjudication of claims to, or objections to attachment of,
property. –
(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
designed or unecessarily delayed.
(2) All questions (including questions relating to right, title
or insert 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 in
sub-rule (2), the Court shall, in accordance with such
determination, –
(a) all the claim or objection and release the property from
attachment either wholly or to such extent as it thinks fit; or
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(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 proviso to sub-rule (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.”
8. The rule contains detailed enquiry into questions
including a question related to right, title or property attached
except in cases where the objection is made after the property
attached has already been sold or if the Court considers that the
claim or objection was resiliently or unnecessarily delayed. Thus,
the rule mandates that the Court has to enquire the claim
mentioned in the objection and determine such question in wake
of the embargo of filing of separate suit for determination of such
question.
9. This takes me to the orders impugned. The executing
Court has dismissed the application/objection on the premise that
no evidence was adduced by the objector in respect of having
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sufficient opportunity available to support the same coupled with
the reason that immovable or movable property of the appellant is
yet to be attached. The executing Court further opined that the
objection raised is frivolous, filed only for wasting time and
delaying the proceedings. The first appellate Court while
dismissing the appeal concurred with findings of the executing
Court and also added that the appeal is not maintainable since the
objection has been dismissed under Order XXI Rule 58(1)(b).
10. Considering the scheme of adjudication of the claim and
the objection provided under Order XXI Rule 58, it appears that all
objections made to the attachment of property in execution of a
decree are to be adjudicated by the executing Court in the manner
prescribed in the Order XXI Rule 58(2) and (3); whereas, sub-rule
(4) of Rule 58 provides that adjudication made by the executing
Court shall have the same force and shall be subjected to the same
condition as the appeal or otherwise as if it were a decree.
However, if the objection is not entertained for the reasons
mentioned in provisions (a) and (b) to sub-rule (1) of Rule 58
then an appeal is not be allowed against the said rejection and the
objector may file a separate suit.
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11. Considering the observations made in the orders
impugned by the trial Court as well as the first appellate Court, it
is necessary to decide here whether the application/objection has
been dealt with under proviso to sub-rule (1) or has been
adjudicated under sub-rule (2) of Rule 58. In order to ascertain
this fact, it is necessary to see the procedure which is required to
be followed while adjudicating an objection under sub-rule (2).
Determination of objection under sub-rule (2) necessarily implies
and casts a mandatory duty upon the executing Court to allow
parties to lead evidence in support of the claim raising objections
and pass an appropriate order (See: Pohlo Ram Sharma and
others Vs. Narinder Singh Randhwa and others 1, M. Ramchandra
Rao Vs. Kuricheti Ravi Vs. Kuricheti Ravi2 and another and
Mukesh Kumar Sanghavi Vs. Saifuddin Qurban Hussain Bohra 3)
12. Considering the reasons mentioned by the executing
Court, it does not appear to me that the objection has been
dismissed under proviso (a) or (b) of Rule 58 of Order XXI.
Therefore, the finding of the first appellate Court that the appeal
is not maintainable does not sustain.
1 2007 SCC OnLine P&H 929
2 1999 (1) A.P.L.J. 397 (HC)
3 2009 (2) M.P.L.J. 475
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13. Now let’s see whether the Court proceeded to hold
enquiry and inspite of that the appellants failed to adduce any
evidence.
14. The learned counsel for the respondents submitted that
since the application/objection was premature there was no need
for the Court to determine the objection under the provisions of
Order XXI Rule 58(2). Thus, both parties are ad idem that no
adjudication was done by the executing Court. No doubt, as per
Order XXI Rule 58, the objector may object to the attachment of
the property. Since, on the date of filing the objection i.e.
26.11.2015 the property of the appellants was not attached;
rather, original defendant no.1-Shankarrao was alive on that date,
therefore, there was no need to attach the property of the
appellant i.e. the wife of one of the judgment-debtors. That apart,
the application (Exh.17) came to be allowed for attaching the
property of the appellants with a direction to provide the details of
the movable and immovable property of judgment-debtor
including the appellants on 08.03.2018. Thus, even after the order
below Exh.17 was passed, the house property was not attached. It
transpires that after the death of the husband of the appellant on
13.08.2018 another application (Exh.28) came to be filed by the
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respondents on 24.04.2018 for attaching house property of the
appellant as legal representative of her husband which came to be
adjudicated upon by the order dated 24.04.2018.
15. Thus, it is more than clear that the objection of the
appellants has not been dismissed under any of the proviso to sub-
rule (1) of Rule 58 of Order XXI and therefore, the objection
cannot be tried by filing of a separate suit. The executing Court
and first appellate Court opined that the objection raised by the
appellant is premature. Thus, admittedly the objection has not
been adjudicated on merit.
16. No doubt, on the date of filing objection the application
for attachment was not filed but the fact remains that pending
objection, the claim for attachment was made by the respondent.
As soon as the claim for attachment of property is made, the
objection to such claim can be filed under sub-rule (1) of Rule 58
of Order XXI of CPC. Therefore, the findings of both the Courts
below that the objection is premature are incorrect. Needless to
mention that, if the objection is not dismissed under proviso to
sub-rule (1) of Rule 58, the executing Court is duty bound to
proceed and adjudicate the objection under sub-rule (2) of Rule
58 of Order XXI of the CPC which has not been done in the case at
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hand. Therefore, the substantial questions of law framed are
answered accordingly. The executing Court and the appellate
Court have erroneously dismissed the objection of the appellants.
Therefore, the orders impugned are required to be set aside.
Hence, the following order is passed:
(i) The appeal is allowed.
(ii) The impugned judgment, order and dated 31.10.2022 passed
by the District Judge-8, Nagpur in Regular Civil Appeal
No.173/2022 and order dated 08.03.2018 passed below Exh.8
and order dated 08.03.2018 passed below Exh.17 by the 7 th Joint
Civil Judge, Senior Division, Nagpur in Special Darkhast
No.6/2015 are quashed and set aside. The matter is remanded
back to the executing Court for deciding the objection of the
appellants in view of proviso to Rule 58 of Order XXI of the CPC.
With this, the appeal stands disposed of.
JUDGE
Wagh