2003 (1) TMI 763

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....JULU, J. 1. First respondent obtained a decree against respondents 2 to 5 for recovery of money and filed E.P.No. 162 of 2000 to execute that decree and got attached the house property specified in the scheduled appended to the E.P., which was sold in Court auction on 22.04.2002 and that sale was confirmed on 24.06.2002. On 23.07.2002, i.e., about one month after the confirmation of sale, revis....

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....se in that case the petition was filed before the sale was held. 3. Proviso to Rule 58(1) of Order 21 C.P.C. reads: "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 unn....

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....f the claim petition is entertained and disposed of on merits that order can be questioned only in an appeal but not by way of a separate suit. The fact that a revision, but not an appeal, is filed by the claim petitioner against the order of dismissal of his petition clearly shows that the revision petitioner is also aware that his petition was dismissed under the proviso to Rule 58(1) of Order 2....

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....of the appeal that the appeal is liable to be dismissed inasmuch as the sale was already held. Therefore, one of the points for consideration framed was whether the appeal can be proceeded with even though the property was sold during the pendency of the appeal. Holding that the appeal can be heard on merits, the Bench held in para-15 of its Judgment as under: "Whenever a claim is preferr....