Order XXI Rule 58 CPC is not maintainable in execution proceedings for recovery of possession without prior attachment.

The Appellant (Plaintiff) obtained a decree for specific performance in O.S.No.622 of 2010 against the 2nd Respondent (Defendant) regarding a sale agreement dated 21.11.2007.

Following the decree, the Appellant deposited the balance consideration, and the Court executed a registered sale deed in his favor on 08.10.2018 via E.P.No.20 of 2017.

The Appellant then filed E.P.No.90 of 2019 for recovery of vacant possession.

During these proceedings, the 1st Respondent (a Temple/Madam) filed E.A.No.1 of 2023 under Order XXI Rule 58 of the CPC, claiming the property was endowed to the temple via a 1928 settlement deed and that subsequent transfers were void.

The Executing Court allowed the 1st Respondent’s application, dismissed the Appellant’s execution petition for possession, and declared various registered documents—including a Will, settlement deeds, and a power of attorney—as nullified or cancelled.

The Appellant challenged this order on the grounds of maintainability and jurisdictional error.

1. Whether an application under Order XXI Rule 58 of the CPC is maintainable in an execution petition filed for recovery of possession where no attachment of property has been effected.

The Court applied Order XXI Rule 58 of the CPC, which provides an adjudicatory mechanism for claims or objections regarding the attachment of property in execution of a decree.

It relied on the Supreme Court precedent in L.K.Prabhu @ L.Krishna Prabhu (Died) through Lrs Vs. K.T.Mathew @ Thampan Thomas and others (2026 (1) CTC 113), which held that Rule 58 is an adjudicatory mechanism specifically for property attached before judgment and cannot be expanded into a substantive enquiry under Section 53 of the Transfer of Property Act.

The Court also followed Mirthubasini Vs. Easwaramurthy (CMSA.No.20 of 2007), establishing that Rule 58 cannot be invoked after the property has already been sold.

The Court observed that the fundamental requirement for invoking Order XXI Rule 58 is the existence of an attachment of property.

In the present case, E.P.No.90 of 2019 was filed solely for recovery of possession based on a court-executed sale deed; no attachment was sought or made.

Consequently, the Executing Court lacked the scope to entertain the application.

The Court further reasoned that the 1st Respondent, claiming an independent title not derived from the judgment debtor, should have initiated a separate civil suit for declaration rather than utilizing summary execution proceedings.

The Court noted that the Executing Court exceeded its jurisdiction by "cancelling" a Will and nullifying registered deeds, noting that only a testator can cancel a Will, and a Court can only declare it genuine or otherwise.

The 1st Respondent also failed to provide sufficient evidence of a specific endowment or vesting of the property.

The Appeal Suit was allowed, and the order of the II Additional District and Sessions Judge, Tiruppur, in E.A.No.1 of 2023 was set aside.

The Court clarified that the 1st Respondent remains at liberty to independently establish its title through a proper civil suit, subject to the law of limitation.