The High Court of Tripura dismissed an appeal which was reopened for hearing and proper adjudication and held that it would be just and proper if the interests of the third parties were also decided with respect to the property under execution concerned and deciding a matter purely on technicalities to say that the pleading does not disclose any reasons cannot be a ground to deprive the legitimate right of a citizen.
Brief Facts:
The plaintiffs filed a suit against the sole defendant for restoring the property which had been damaged by the defendant by digging sand from the open land and by changing the nature of the property and the plaintiffs also sought a claim for such damages. the decree-holder filed an execution proceeding seeking attachment of the property of the defendants. The third parties to the suit filed an application before the execution court and contended that notices were not served and they are affected parties and have rights, title, and interest upon the property under attachment, and according to the third parties deceased is not the owner but it is seen from the cause title that he is the son of original owner. This present appeal is again re-opened for hearing and proper adjudication.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the Court below having satisfied has ordered the execution petition in the form of attaching the property and without any proper reasons, the order of attachment has been lifted and thus prayed to continue the order of attachment and passed an interim order of attachment.
Observations of the court:
The court observed that the court below has passed an order of attachment but after hearing the third parties the said order of attachment has been lifted in all fairness to appreciate their rights, title, and interest and to follow the doctrine of principles of natural justice. Thus, it becomes necessary to examine Order XXI Rule 58 of CPC and other relevant rules that protect the interest of the third parties.
The court stated that if an application is made by the stranger, without filing a fresh suit for declaration of right, title, and interest, and if the Court decides the same, it will amount to the passing of a decree. Since the third parties are not before this Court and since the matter is pending before the Trial Court, it is not for this Court to go and decide upon the other aspects and thus confines the case only to the extent of issues involved in the CRP i.e., with regard to the lifting of the attachment.
The court further observed that since the major issue of deciding the right, title, and interest is pending before the Court below, passing an order of attachment or lifting the attachment in no way would prejudice the rights of the decree-holder and deciding a matter purely on technicalities to say that the pleading does not disclose any reasons cannot be a ground to deprive the legitimate right of a citizen when the citizen is before the Court of law for his rights. His rights are to be protected under the Constitution of India and the same needs to be given a high pedestal in order to meet the ends of justice.
The court held that it would be just and proper if the interests of the third parties were also decided with respect to the property under execution. Accordingly, there shall be a direction to the Court below to give an opportunity to the third parties to the suit and if any application is filed, the same be decided as per procedure by giving an opportunity to all concerned.
The decision of the Court:
The court dismissed the petition.
Case Title: Sahajada Choudhary vs. Mamataj Begam and ors.
Coram: Hon’ble Mr. Justice T. Amarnath Goud
Case No.: CRP NO.83 OF 2022
Advocate for the Petitioner: Mr. P. Roy Barman, Mr. S. Bhattacharjee, Mr. K. Nath
Advocate for the Respondent: None
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