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Report No. 27

Order XXI, rule 58

1. A person making a claim or objection to an attachment need show, at present, merely possession of the property. According to the recommendation made in the Fourteenth Report1 the inquiry must be full and cover questions of ultimate right and title. To achieve that object, changes have been proposed.

2. The question has been raised whether, in view of the fact that suits existing under rule 63 will now be replaced by an inquiry in execution (under the proposed scheme), it. would not be advisable to make an express provision as to whether questions of fraud, for example, those under section 53 of the Transfer of Property Act, could be considered in proceedings under rules 58 to 63.

3. It is considered unnecessary to make any such provision for this purpose only.

4. It is considered unnecessary to make an express provision as to whether the proceedings under rule 58 et seq and the decisions given thereon will be binding as between the judgment-debtor and a third party claimant. The answer to that question would depend on the question- who are the parties to the suit and what are the matters raised therein2.

5. It is considered unnecessary to make a provision that a third person who is affected by the attachment is not bound to take proceedings under these rules and can file a regular suit. That is the existing law, and that position will continue.

1. 14th Report, Vol. I.

1. For a recent decision on this aspect, see ILR 1956 AP 874: AIR 1957 AP 61 (FB).

Order XXI, rule 58 and limitation

1. When an objection or claim is dismissed after the proceedings under rules 58 to 62, the suit, if any, by the aggrieved party, can be filed under Order XXI, rule 63 within the period of 1 year1.

Since under the scheme of rules 58 to 63, as proposed, a full inquiry into title will be held, a suit would be barred under the changed scheme. But where the court does not entertain the claim by virtue of delay or by virtue of the claim having been filed after the holding of the sale, the right of suit may be preserved2. Article 98 of the Limitation Act, 1983 should, in this context, be confined to such suits, and will require change for the purpose.

2. It is also considered that the period should be reduced from one year to one hundred and eighty days in order that the matter may not remain hanging for long. This change may also be carried out in Article 98.

1. Article 98 of the Limitation Act, 1963 corresponding to Article 11 of the old Act.

2. See Order 21, rule 58, as proposed.

Order XXI, rule 58 and court-fees

Since orders under Order XXI, rule 50 will now be appealable as decree the appeals will attract full court-fees. For the purpose of court-fees, those order should be treated as orders under section 47. Necessary reduction of court-fees should be granted by the State Governments by issuing a notification under the relevant provision of the Court-fees Act applicable to the State, as has been done in most States in respect of orders under section 47, C.P.C.

Code of Civil Procedure, 1908 Back

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