Rajive Bhalla, J.@mdashChallenge in this revision is, to an order dated 20.3.2006 passed by the Civil Judge (Junior Division) Barnala and order dated 15.62006 passed by the Additional District Judge, Barnala.
2. Counsel for the petitioner contends that the petitioner''s brother Mohinder Kapil is the judgment-debtor. The petitioner''s property, namely his machinery was attached in Execution Application No. 23 of 15.5.2001. The petitioner, therefore, filed objections to the attachment, raising specific pleas: that the machinery did not belong to the judgment-Debtor, the machinery was purchased by the petitioner after raising a loan from the Barnala Primary Co-operative Land Development Bank Ltd., Barnala and the judgment-debtor had no right, title or interest in the machinery. It is further submitted that despite these details objections, the Executing Court, did not grant an opportunity, to adduce evidence. The objections were summarily dismissed. It is further submitted that the trial Court wrongly observed that the petitioner had not brought forth any documentary evidence to establish his exclusive ownership and possession over the machinery. The petitioner had placed on record photocopies of the bills of purchase and documents evidencing a loan from the bank. In case, the learned Executing Court had granted an opportunity to the petitioner, to establish the veracity of these documents, the petitioner would have established their correctness. The objections filed on 18.3.2006 were dismissed on 20.3.2006.
3. It is further contended that the appellate Court, namely, the Additional District Judge, Barnala, did not examine the matter in detail and by relying upon the affidavit, filed by Mohinder Kapil that he was owner to the extent of 1/2 of the property, dismissed the appeal.
4. Counsel for the respondent, on the other hand, states that the respondent is in possession of documents, which would show that Mohinder Kapil is a partner in M/s Kannu Printing Press and, therefore, owner to the extent of 1/2 share of the property, owned by M/s Kannu Printing Press. It is, thus, asserted that the learned Executing Court, rightly dismissed the objections, as they were without merit. As regards the petitioner''s submission with respect to loan and bills of purchase, it is submitted that documents were never placed before the trial Court and no opportunity to lead evidence was ever sought.
5. I have heard learned Counsel for the parties and perused the impugned orders.
6. The petitioner filed objections under Order 21 Rule 58 C.P.C. A perusal of the order passed by the learned Executing Court discloses that the procedure prescribed thereunder was not followed. Order 21 Rule 58 reads as follows:
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 mat 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 designedly or unnecessarily delayed;
(2) 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 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) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(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 the proviso to Sub-rule (1), refuses to entertain it, the party against whom such order is made 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.
7. An Executing Court, considering objections, as to the validity of an order of attachment exercises jurisdiction under Order 21 Rule 58 and is, therefore, required to decide all questions, including questions relating to any right, title or interest in the property attached. Adjudication of objections must follow the procedure prescribed under Order 21 Rule 58.
8. The learned Executing Court, erred in the discharge of its jurisdiction by disregarding the provisions of Order 21 Rule 58(2). The petitioner raised a bona fide dispute, as to the right, title and interest of the Judgment-debtor in the attached property. The documents relied upon, namely, the loan raised from the Barnala Primary Co-operative Land Development Bank Ltd. Barnala and the bills of purchase of machinery, prima facie, bear out the petitioner''s contentions that he is the owner of the machines.
9. The learned Executing Court was, therefore, required to provide a reasonable opportunity to the petitioner, to establish the correctness of his objections.
10. The appellate Court, on the other hand, disregarded the material placed on record and dismissed the appeal, on the sole ground that the judgment-debtor Mohinder Kapil had admitted in his affidavit that he was owner to the extant of 1/2 share in the attached properties. The affidavit, a relevant piece of evidence, could not have been the sole ground, to dismiss the appeal and/or the objections.
11. In view of what has been stated herein above, as the learned Executing Court disregarded the provisions of Order 21 Rule 58 of the CPC, the revision petition is al-lowed.
12. The order dated 20.3.2006 and 15.6.2006 are set aside and the matter is remitted to the Executing Court, to decide the objections filed by the petitioner, afresh within a period of two months from the date parties appear before the trial Court. Parties are directed to appear before the trial Court on 17.3.2008.
