L.K. Mishra, J.@mdashThis appeal is directed against order dated 10-8-2005 passed in Misc. Case No. 4 of 2004 (arising out of Execution Case No. 6 of 2003) of the Court of learned Judge, Family Court, Cuttack by which he dismissed the aforesaid Misc. Case.
2. The factual backdrop is as follows:
Smt. Sugyani Sahu (respondent herein) obtained a decree of maintenance against her husband-Rabi Narayan Sahu u/s 18 of Hindu Adoption and Maintenance Act, 1956 for a sum of Rs. 1,200/- (Rupees Twelve Hundred only) per month which was made payable from 7-4-1998. She levied the execution being Execution Proceeding No. 6 of 2003 for realization of maintenance. In the said proceeding order of attachment of immovable property to the extent of the share of judgment debtor was passed on 26-9-2003. The present appellant Hemalata Sahu being the mother of Rabinarayan Sahu filed a petition under Order 21, Rule 58, C. P. C. to dismiss the Civil Proceeding No. 136 of 1998 on the ground that the decree holder cannot be regarded as the wife of Rabinarayan Sahu because of statutory bar contained under Sections 5 and 18 of the Hindu Marriage Act, 1955 and, therefore, the execution proceeding is liable to be dropped and the order of attachment vacated. The learned Court below after hearing from both sides rejected the application and dismissed the Misc. Case occasioning the present appeal.
3. Learned advocate for the appellant has submitted that the impugned order is bad in law since the property belongs to a joint family to which the judgment debtor belongs and since all the members of the joint family have not been impleaded in the suit. Learned advocate for the respondent has supported the impugned order with vehemence.
4. Order 21, Rule 58, C.P.C. which is relevant for this case reads as follows:
58. Adjudication of claims to, or objections to attachment of property - 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 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 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 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.
5. The precondition of application of Order, 21 Rule 58, C.P.C. are that there must have been an attachment of any property for execution of the decree and the claim should have been preferred or the objection should have been made to the attachment on the ground that such property is not liable to such attachment. The question, therefore, to be decided by the Court in an application under this rule is whether the property is liable to be attached or not. No question which has been finally decided between the parties can be reopened by a third party by filing an application under Order 21, Rule 58, C.P.C., much less by a person who was not a party to the original litigation. In the present case, whether the marriage between the decree holder and judgment debtor is valid or not and whether the decree holder is entitled to maintenance from the judgment debtor and to what extent has already been decided by the competent Court. This judgment is a judgment in rem and consequently, is binding against the whole world as per the provision of Section 41 of the Evidence Act. The judgment could be challenged only by a party to the litigation that too in a competent appeal.
MATA 17 of 2003 has been filed at the instance of the husband before this Court who has challenged the judgment and decree. No right accrues to the mother of the husband to challenge the valid judgment and decree at the time of execution merely by filing a petition under Order 21, Rule 58, C. P. C., therefore, the learned Court has rightly rejected the contention of the appellant. Hence, the appeal is incompetent and dismissed as such.
P.K. Tripathy, J.
6. I agree.
