Jharkhand High Court
Mala Welfare Society Through Its ... vs Punit Rabidas on 15 September, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:28313
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C. M. P. No. 578 of 2025
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Mala Welfare Society through its Secretary namely Deepmala Kumari, W/o
Sri Manoj Kumar, office at Banahapa, P.O.-Banahappa, P.S.-Muffasil, Dist.-
Hazaribagh. ... .... Petitioner
Versus
1. Punit Rabidas, S/o Late Raghu Das, R/o Canary Hill Road, Near Mount
Egmount School, P.O.-Hazaribagh, P.S.-Korrah and Dist.-Hazaribagh
2. Manoj Kumar, S/o Jeewadhan Prasad, R/o Village-Pesra, P.O.-
Ganpacho, P.S.-Korrah, Dist.-Hazaribagh ... .... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Sameer Ranjan, Advocate
For the O.P. No.2 : Mr. Shadab Eqbal, Advocate
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Oral Order
05 / Dated : 15.09.2025
1. The petitioner has filed the instant civil misc. petition under Article
227 of the Constitution of India for quashing the order dated
24.06.2025 passed in Execution Case No. 01/2024, arising out of
Money Suit No. 04/2020, whereby and whereunder, direction has been
passed for issuance of sale certificate in favour of opposite party no. 1/
decree holder.
2. Brief facts, leading to the present case, are that the aforementioned
money suit was filed by opposite party no. 1 for decree of Rs.
29,49,000/- impleading Manoj Kumar, Proprietor of Madam Mala
Institute of Hotel Management, District Hazaribagh. The said suit was
decreed ex-parte vide judgment dated 30.06.2023 and the said
judgment and decree attained finality.
3. The execution case was filed under Order XXI Rule 10 of CPC. The
description of movable and immovable property of the petitioner
society situated in Village-Banahappa, P.S.-Mufassil (Sadar), P.S. No.
212 and Dist.-Hazaribagh was given as detailed in Schedule A which is
descripted as under:
Khata No. Plot No. Area (in acres)
36 1740 1.04
11 1715 0.54
1 1714 0.94
4. The main contention of the petitioner is that the property, in question
was not exclusive property of the judgment debtor-Manoj Kumar and,
therefore, it could not have been included in Schedule-A which has
been attached.
5. An objection was raised under Order XXI Rule 58 of CPC which was
rejected by the learned executing court, which was assailed
erroneously before this Court in C.M.P. No. 596 of 2025, instead of
under Order XXO Rule 58(4) of the C.P.C. Consequently the said civil
misc. petition was withdrawn with liberty to work out legal remedy
against the impugned order.
6. The main contention of the petitioner is that after the said civil misc.
petition was withdrawn, the petitioner could not assail the order of
attachment, since auction sale was held and sale certificate was also
issued. Therefore, any application for challenge to the attachment
became infructuous because of passage of time. In this view of the
matter, the sale certificate is under challenge before this Court which is
not an appealable order under Order 43 of CPC.
7. On merit, it is argued that the Executing Court misdirected itself to
attach the property in the first instance, as the property did not
exclusively belong to the judgment debtor-Manoj Kumar, rather it was
of the petitioner-Society and secondly, the property is urban land
measuring 2.52 acres, which has been under value and sold to the
auction purchaser - opposite party for a meagre sum of Rs. 29 Lakh.
8. It is argued by learned counsel for the decree holder/opposite parties
that the impugned order is not factually appealable, but a suit will lie.
Further, so far as the merit of the order passed by the Executing Court
regarding attachment is concerned, it is submitted that it had
considered all the aspects and has taken into account the fact that
property were actually that of Manoj Kumar who was the judgment
debtor and that did not exist a separate legal entity in the form of the
society separate from the judgment debtor. The present petitioner is
none else but the wife of the judgment debtor-Manoj Kumar.
9. Having considered the submissions advanced on behalf of both the
sides, the undisputed fact that emerges is that the order of attachment
was challenged by the petitioner which was rejected by the learned
Executing Court on 20.05.2025. The proper course should have been
to file an appeal under Order XXI Rule 58 (4) CPC. However, the
petitioner erroneously approached this Court by filing the instant CMP
under Article 227 of the Constitution of India on 08.07.2025 and by
that time, auction was held and sale certificate had already been issued
on 24.06.2025.
10. The petitioner withdrew Civil Misc. Petition on 29.07.2025 and by that
time, before he could approach the Court of District Judge to prefer an
appeal, the sale certificate had been issued.
11. The matter for consideration is whether the petitioner now cannot
assail the order of attachment after the sale certificate has been issued.
There were judgments of different High Courts that whether
attachment order can be assailed after the issuance of sale certificate or
not, but the same has now been settled by Hon'ble the Supreme Court
in the case of Kancherla Lakshminarayana vs Mattaparthi
Syamala & Ors. [(2008) 14 SCC 258] wherein it has been held that
the word 'sold' in Clause (a) of proviso to Rule 58 has been read
meaning thereby, a complete sale including the confirmation of auction
sale, and that even after the factum of sale, the objection would still lie
before the sale is made absolute.
12. Here, in the present case, petitioner had approached a wrong forum,
but within the stipulated time, against the rejection of objection to the
attachment.
13. This Court is of the view that petitioner cannot be left remediless, on
account of his wrong choice of forum, against the order of rejection of
attachment only for the reason that he preferred before the wrong
forum.
14. Petitioner is permitted to prefer an appeal under Order XXI Rule 58 (4)
CPC before the appropriate forum against the order of attachment. The
subsequent orders passed by the Executing Court will depend upon the
finality of the order passed in appeal.
15. The instant CMP is disposed of, with direction to approach the District
Judge within two weeks from the date of this order against the order of
rejection of objection to attachment. Parties will appear on 7th October,
2025, before the District Judge for hearing of the said appeal. In the
event of non-appearance of any party, court will proceed as per law.
(Gautam Kumar Choudhary, J.)
15.09.2025
Sandeep/-
