The High Court of Kerala has clarified that an order adjudicating a claim over a property under attachment before judgment is appealable as if it was a decree. The clarification was made by a division bench comprising Justice V Chitambaresh and Justice Narayana Pisharadi, answering a reference whether such an order could be challenged in an original petition under Article 227 of the Constitution.
The reference was occasioned when the registry refused to assign a number to an original petition filed challenging an order on claim petition, on the ground that it was original petition was not maintainable as the order was appealable. The decision of a single judge in Ali v Muhammadali 1995(2) KLT 225 was cited. However, the single bench overruled the objection of the registry by relying on a decision of division bench in Anto Mamkoottam v Peruvanthanam Service Co-operative Bank 1996(2) KLT 962. In view of the ensuing confusion, the reference to division bench was made.
The division bench noted that as per Order XXXVIII Rule 8 of the Code of Civil Procedure, claim petitions on property under attachment before judgment should be adjudicated in the manner provided for adjudication of claims with respect to property under attachment in execution of a decree. The claims for properties under attachment in execution are to be dealt with as per Order XXI Rule 58 CPC. The orders made under Order XXI Rule 58 have the same force as if it were a decree, as per Rule 58(4). Therefore, an order on claim petition with respect to property under attachment before judgment has the same force as a decree. Therefore, it follows that such an order is appealable in the same manner a decree can be subjected to appeal, as per Section 96 of the CPC.
The division bench also held that the single bench misquoted the decision in Anto Mamkoottam while overruling the objections of the registry.
Reference was made by the division bench to the decision of a full bench of the Andhra Pradesh High Court in Gurram Seetharam Reddy v Gunti Yeshodha and Another AIR 2005 AP 95 to arrive at the conclusion.
Advocate Abraham George Jacob assisted the court in the matter as amicus curiae. Advocates KS Hariharaputhran and RS Kalkura appeared for the parties.