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2016 (9) TMI 1666 - HC - Companies LawAttachment of property - monies were transferred, siphoned off, fraudulent documents were prepared and liabilities were transferred - HELD THAT:- Perusal of Order 21 Rule 58 clearly reveals that legislature in its wisdom has ensured that if a claim is made by third party, claiming to be the owner of the property which is attached, he can, instead of filing separate suit, file his objection under Order 21 Rule 58 and such an objection has to be considered by the Court. It will be necessary here to point out that sufficient power has been given to the Executing Court to decide the application and it has been clearly mentioned in the proviso to Rule 58(1) of order 21 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. Therefore, the Executing Court has power to regulate the procedure before deciding the claims or objections which are filed by the third parties. Keeping that in mind, the learned Single Judge has made those observations in para 4 of the said order. The application for issuance of precept under section 46 is taken out firstly in cases where the property is situated outside the jurisdiction of the Court and, secondly, if the property which is to be attached is a movable property then order of attachment is passed, so that the execution does not become infructuous. The learned Single Judge therefore, in our view, has correctly followed the procedure laid down under CPC. It is therefore clarified that if such a remedy is available to the Appellant under Order 21 Rule 58, Appellant can also exhaust that remedy and the learned Judge before whom such an application is made shall accordingly decide it in accordance with law. Appeal dismissed.
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