Claim petition by third party to the partition suit

784 votes

hello !!
what is the issue in totality and for what purpose you wish to file claim petition .
it will be in justified to advise without knowing whole fact in your situation
kindly provide the whole fact

Advocate Rahul Kumar Singh LawRato

502 votes

Yes
If you has the right and claim and documents for the same. Then you can ask for the claim before the finaldecree. Once the final decree is announced thereafter you would not be able to claim it.

Advocate Prashant Vaxish LawRato

609 votes

Yes. It was held by the Supreme Court that, an executing Court must take the decree as it stands. An executing Court cannot go behind the decree. It can neither add something in the decree already passed, nor alter the decree.

Whereas an objection to attachment or claim to attach property if made by a third party, the objector may either proceed by an application under this rule before the executing Court or he may bring a suit to Establish his objection. His failure to proceed by an application under this Rule is no bar to a separate suit. The object of this rule is to give a speedy and summary remedy, but this rule does not deprive him of his remedy by Way of suit.

The claim petition is to be tried like a suit and the burden of proof lies on the claimant to lead evidence if the claim petitioner fail to lead evidence in support of his claim the court cannot be found fault with especially after the original and appellate court have also confirmed the dismissal.

In claim petition, the burden is on the claimant to prove that on the date of attachment, he has some right, title or interest or was in Possession of property attached. If the claimant is succeeded in proving that fact, then burden is shifted on decree-holder to prove that the objector was not the owner or holds any interest for judgment-debtor. In a suit filed by a third party to the litigation, burden of establishing right, title or interest in the property is upon the plaintiff.

In the ordinary course of things, any objections, raised by third parties, are required to be raised by filing applications under Rules 58, 97 or 99 of Order 21, r/w Sec. 47 C.P.C. However, a perusal of sub-rule (4) of Rule 92 of Order 21 discloses that it is permissible, to file a suit, challenging the very title of the judgment-debtor, to the properties involved in the matter. The only condition is that the auction-purchaser, the decree-holder and judgment-debtor shall be made parties to it.

Advocate Sujeet Notwal LawRato