Order 38 Rule 8 CPC | Claim Petition Cannot Be Allowed Ex-Parte Without Adjudication On Merits: Kerala High Court

"It is well settled that a claim petition is liable to be tried akin to a suit, in which all questions of right, title and interest over the property are to be adjudicated." Kerala High Court, in a judgment dated 07 October 2026, held that a trial court cannot allow a claim petition for lifting an attachment merely because the respondents chose not to appear.

A division bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar observed that a claim petition under Order 38 Rule 8 of the CPC necessitates a formal adjudication of the claimant's rights, as it is akin to a suit.

The litigation arose from a money suit, OS 380/2010, wherein eight items of immovable property belonging to the defendants were attached before judgment in 2012. Years later, the first respondent-Bank filed an application (IA 6/2025) under Order 38 Rule 8 of the CPC, asserting a prior mortgage interest over the attached properties. The trial court allowed the application and lifted the attachment solely on the ground that the plaintiffs failed to appear and were set ex-parte.

The primary issue before the High Court was whether a claim petition filed under Order 38 Rule 8 of the CPC can be allowed in a summary manner based solely on the absence of the respondent. The court was also tasked with determining the propriety of maintaining parallel claim proceedings, specifically an application under Order 21 Rule 58 of the CPC pending in the execution stage alongside the original claim petition.

Court Explains Quasi-Judicial Duty

The High Court emphasized that a claim petition is not a mere formality to be disposed of by a stroke of the pen based on the absence of a party. The court held that the trial court's order, which failed to rely on any material to substantiate the existence of the Bank’s mortgage, was legally unsustainable. The bench stressed that such petitions demand an examination of the merits regarding title and interest.

"The order impugned reveals that the order was passed since, in spite of service of notice on the plaintiffs, they remained ex parte. Evidently, the claim has been allowed solely for the reason that the respondents remained ex parte. No material is seen relied on by the Court to find the existence of a prior mortgage right over the property."

Avoidance Of Parallel Proceedings

The Court further noted that the respondent-Bank had simultaneously filed a claim petition as EA 592/2025 under Order 21 Rule 58 of the CPC within the execution proceedings. Finding that two parallel claim proceedings were being prosecuted for the same relief, the bench adopted a pragmatic approach to streamline the litigation, directing that the claim be adjudicated within the execution proceedings to avoid multiplicity of forums.

"As noticed above IA 6/2025 and EA 592/2025 are claim petitions and one alone need be prosecuted; of course IA 6/2025 was filed prior to the commencement of the execution proceedings. Be that as it may, without going into technicalities, we order that, the execution proceedings being pending, the claim raised in execution as EA 592/2025, alone, need be prosecuted."

The High Court set aside the impugned order of the trial court and dismissed IA 6/2025, granting the claimant liberty to agitate their rights within the pending execution application, EA 592/2025. The execution court was directed to dispose of the claim petition on its merits and strictly prior to further proceeding with the execution petition. The Court clarified that it expressed no opinion on the actual merits of the mortgage claim.

Date of Decision: 07 October 2026