Objection Filed After Sale Of Attached Property Barred Under Order 21 Rule 58 CPC, Family Courts Should Be Careful: Kerala High Court

The Kerala High Court recently held that an objection cannot be filed after the sale of attached property has been confirmed, as per the bar under proviso (a) to Order 21 Rule 58(1). It thereby cautioned Family Court judges to be more careful, vigilant, and sensitive, while dealing with cases before them. 

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas passed the Order while finding the Family Court had erroneously entertained and passed its decision on a claim petition that was hit by proviso (a) to Order 21 Rule 58(1).

Order 21 Rule 58(1) stipulates that "Where any claims 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". Proviso (a) goes on to state in this regard that, "no such claim or objection shall be entertained where before the claim is preferred or objection is made, the property attached has already been sold". 

"Family Court Judges are to be more careful and sensitive in dealing with human issues coming before them. Without realizing the real factual position or the law applicable, they cannot blindly pass orders unmindful of the consequences arising therefrom," the Bench observed. 

The appellant herein had filed a petition seeking recovery of patrimony, maintenance against her husband, the second respondent. Pursuant to the petition being decreed in her favour, she filed an execution petition and proceeded against the attachment schedule property which was six cents of land, for realizing the decree debt. The property was then sold in court auction, which was then purchased by the appellant on June 29, 2011.

The sale of the property was confirmed on August 29, 2011, and the sale certificate was also issued to her favour on June 13, 2012. However, when the petition was posted for delivery, on December 18, 2013, the first respondent filed a claim petition stating that the 2nd respondent was her husband, and that the auctioned property belonged to her, as it was given to herself and her husband as her share by her father.

She claimed that she was the absolute owner of the property, and sought exemption of her property from sale proceedings. The appellant however, objected the same claiming that there was no marital relationship between the two respondents and that the property was liable to be proceeded for the dues to be recovered from her husband. 

The Family Court allowed the claim petition filed by the 1st respondent and lifted the attachment finding that, there was nothing to prove title of the 2nd respondent over the property. It is this order which was under challenge before the High Court.

The Court in this case was faced with the question as to whether a claim petition filed after confirmation of the sale could be entertained in view of the specific bar under proviso (a) to Order 21 Rule 58 (1) of CPC.

The Court noted that a claim petition or objection to the attachment, with regard to the property attached in execution of a decree shall not be entertained, where before the claim is preferred or objection is made, the property attached has already been sold or where the court considers that the claim or objection was designedly or unnecessarily delayed.

In order to ascertain when a property could be determined to have been 'sold' under proviso (a) to Rule 58(1), the Court perused Section 65 of CPC which stipulates 'Purchaser's Title'. 

"...only when the sale has become absolute then only the property is deemed to have vested on the purchaser from the date, when the property is sold. So, only when the sale becomes absolute, the vesting of right will relate back to the date of sale. So, till such confirmation of sale, there cannot be any vesting of title on the purchaser. In order to say the sale is complete, the auction sale should have been confirmed. So, till such confirmation, the sale could not be said to be complete. So, a claim petition or objection filed before confirmation of sale will not be hit by proviso (a) to Order 21 Rule 58(1) of CPC," the Court observed. 

In the present case, the Court noted that the property was sold in auction, sale was confirmed and sale certificate was issued as early as on June 13, 2012, while the claim petition was filed by the 1st respondent on December 18, 2013, and was clearly hit by proviso (a) to Order 21 Rule 58(1), and could not thus have been entertained by the Family Court. 

The Court noted that the Family Court had found that the the property sold as per the court sale was identical to the property covered by the sale deed, when the point of adjudication was whether the property scheduled in the claim petition was the subject matter of auction, and whether it was liable to be auctioned for the dues of the judgment debtor. The Court further observed that the Family Court judge had stated that the claim petitioner had no better title over the 6 cents of property published for auction, and asked how in such a scenario, the Judge could allow such a claim petition. 

"In the impugned order, learned Judge recorded that ‘property is now published for auction’ without verifying the fact that the property has been sold already. In fact, that order was passed much after the property was sold, and even after sale confirmation and issuance of the sale certificate to the auction purchaser. So, obviously, learned Family Court Judge was so careless and irresponsible in passing the order in E.A No.165 of 2013 in E.P No.45 of 2006. On going through that order, we fail to understand what was there in the mind of the learned Judge, either to allow the petition or to dismiss the petition," the Court admonished. 

It thereby proceeded to direct the Registry to serve a copy of the present judgment to the concerned judge, and further asked the Judicial Academy to be more careful, vigilant and sensitive in dealing with the issues coming up before them.

The Court directed the Family Court, Thiruvananthapuram, where the execution petition was still pending, to dispose the same within a period of one month. It clarified that the 1st respondent/claim petitioner could also work out her remedies before a competent civil court, in accordance with law. 

Advocate Latheesh Sebastian appeared on behalf of the appellant. The respondents were represented by Advocates K.L. Shyam and K.K. Vinod. 

Case Title: Thankam v. Remani & Anr. 

Citation: 2023 LiveLaw (Ker) 274

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