Judgment:
ORDER
L. Narasimha Reddy, J.
1. The Government of Andhra Pradesh acquired an extent of Act 18.26 cents of land in Sy. No. 1462 of Poli Grama Polam, Rajampet Mandal, Kadapa District, and an award was passed therein. At the instance of the petitioner, the matter was referred to the Court of Senior Civil Judge, Rajampet, under Section 18 of the Land Acquisition Act (for short 'the Act'), and it was taken up as LA.O.P. No. 40 of 1997. After the decree passed therein became final, the petitioner filed E.P. No. 36 of 2006, for recovery of the balance of compensation.
2. Respondents 1 and 2 filed E.A. No. 192 of 2007, under Rule 58 of Order XXI C.P.C., stating that they are entitled to be paid the amount of compensation. The petitioner opposed that application. Through its order, dated 04-04-2008, the Executing Court allowed the E.A. Hence, this revision petition.
3. Learned Counsel for the petitioner submits that the very filing of E.A., under Rule 58 of Order XXI C.P.C., was untenable, inasmuch as there did not exist any attachment. He contends that the execution proceedings, in an O.P., under Section 18 or 13 of the Act, substantially differ, from those in the ordinary suits, and there was absolutely no basis for the respondents to file the application. Learned Counsel submits that the land stood vested in the Government, on being acquired under the Act, and that the respondents did not participate at any stage of the proceedings.
4. Learned Counsel for the respondents 2 and 3 (sic. 1 and 2), on the other hand, submits that the entire proceedings, in relation to the land, took place without the knowledge of, and notice to, his clients. He contends that the acquired land was owned by the respondents, and the executing Court was justified in determining the claim, as provided for under Rule 58 of Order XXI C.P.C.
5. It has already been mentioned that the Government of Andhra Pradesh acquired an extent of Acs. 18.26 cents of land, by invoking the provisions of the Act. The petitioner herein participated at various stages of the proceedings, be it, while submitting claim statements under Sections 9 and 10 of the Act, or in the award enquiry. After examining his claim, and obviously because there did not exist any rival claims, the Land Acquisition Officer, the 1st (sic. 3rd) respondent herein, passed an award, in favour of the petitioner. Not being satisfied with the compensation, the petitioner submitted an application under Section 18 of the Act, and the same was taken up by the Court of Senior Civil Judge, Rajampet, as L.A.O.P. No. 40 of 1997. The compensation was enhanced and the decree passed by the trial Court became final.
6. The petitioner filed E.P. No. 36 of 2006 and certain amount was deposited by the 1st (sic. 3rd) respondent to the credit of the E.P. At that stage, respondents 2 and 3 (sic. 1 and 2) submitted their claim under Rule 58 of Order XXI C.P.C. It is relevant to extract the prayer of the respondents 2 and 3 (sic. 1 and 2), in their claim petition. It reads as under:
Therefore, the Claim Petitioners humbly pray that the Hon'ble Court may be pleased to declare that the petitioners are the original owners of the land acquired by the 1st respondent and direct the 1st respondent to pay the E.P. Schedule amount to the Claim Petitioners with costs and future interest and grant such other relief's as deems fit and proper in the circumstances of the case in favour of the Claim Petitioners to meet the ends of justice.
7. The application was opposed by the petitioner and the trial Court allowed the same.
8. The claim submitted under Rule 58 of Order XXI C.P.C, by a third party to a decree, is similar to a suit. It needs to be examined, in detail, duly recording the evidence, that may be adduced by the parties. The reason is that, the adjudication, leading to the decree under execution, takes place without the participation of a claimant, and law provides a full opportunity to him to substantiate his claim. However, all that would be possible, only when an item of property is attached, in the course of execution of the decree. Rule 58 of Order XXI C.P.C. reads as under:
Adjudication of claims to, or objections to attachment of property:
(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
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 unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(sub-rule (3) is not relevant for this case. Hence, omitted.)
9. From a perusal of this, it becomes clear that the cause of action for a claimant to submit an application under this provision arises, only if an item of property is attached in the course of execution, and not otherwise. The attachment can be of any movable property of different categories under Rules 42 to 53 or the one of immovable property under Rule 54 of Order XXI C.P.C. Rule 58 does not make any difference between movable and immovable properties. Throughout the length and breadth of the Rule, the word 'attachment' occurs at many places, hardly leaving any doubt that the sine qua non to invoke that provision is existence of attachment. Even where an amount, which is not with the judgment-debtor, is attached in the execution, it is possible for one to invoke that provision.
10. The very prayer in an application under this Rule would be to raise attachment. This is clear from the text of notice prescribed under Form No. 26 of Appendix-E of Schedule, appended to C.P.C. The Form reads as under:
No. 26
NOTICE TO ATTACHING CREDITOR
(Order XXI, Rule 58)
(Title)
To..
Whereas...has made application to this Court for the removal of attachment on...placed at your instance in execution of the decree in Suit No. ...of...19.../20..., this is to give you notice to appear before this Court on...the..., Day of...19.../20..., either in person or by a pleader of the Court duly instructed...
11. Here itself a word of clarification needs to be said. If the judgment-debtor himself deposits the decretal amount, no one can have any claim, vis-a-vis that amount. It is only when the amount is brought from the custody of a different person that the possibility to present a claim under Rule 58 of Order XXI would exist.
12. Reverting to the facts of the case, it was not even pleaded by respondents 2 and 3 (sic. 1 and 2) that there existed any attachment. The amount was deposited to the credit of the E.P. by the 1st (sic. 3rd) respondent-judgment debtor himself. The prayer made by respondents 2 and 3 (sic. 1 and 2) resembled the one for an independent adjudication of the claim and not for raising attachment. Therefore, the very institution of the E.A., by the 2nd (sic. 1st and 2nd) respondent, was untenable.
13. Another aspect of the matter is that, the proceedings under the Act partake a different character, in the context of applicability of Rule 58 of Order XXI C.P.C. Determination as to the entitlement, or otherwise, to receive the compensation takes place, much before the proceedings land before a civil Court. Whoever is interested in the property, that is proposed to be acquired, can put forward his claim, before the Land Acquisition Officer, in response to notices issued under Section 5A, 9 and 10 of the Act or during the course of award enquiry. It is only when a claim is presented before the Land Acquisition Officer and is not accepted by him that an aggrieved party can seek reference under Section 30 of the Act. There is a line of judgments to the effect that, unless a party submits a claim, before the Land Acquisition Officer in the award enquiry, he cannot be permitted to seek reference under Section 18 or 30 of the Act. Assuming that there exists possibility for a person, who did not participate in the enquiry, to present his claim in the proceedings pending before a Court, in relation to the acquired land, it emerges that once the decree passed by the Court becomes final, what becomes payable is the difference of compensation. The execution proceedings are initiated only to recover that amount.
14. The occasion to invoke Rule 58 of Order XXI C.P.C. would arise, only when an item of immovable property, said to be owned by the Government, or some amount, which is otherwise payable to the Land Acquisition Officer, is attached in the course of execution of the decree passed in the OP. When the amount is deposited by the judgment-debtor, i.e., the Land Acquisition Officer, the question of invoking Rule 58 does not arise. If at all the 1st respondent wanted to establish his claim to the acquired property, the only course open to him was, to file a suit for declaration. In the event of his title being recognized, possibility of ancillary relief of recovery of compensation from the person, who received it, may exist. Viewed from any angle, the order passed by the executing Court, cannot be sustained in law.
15. The C.R.P. is accordingly allowed, and the order under revision of set aside. Since the 2nd respondent was pursuing the matter, may be in wrong forum, he is granted three months time to institute a suit for declaration of his rights, over the acquired land, if he intends to do so.
16. There shall be no order as to costs.