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2002 DIGILAW 1060 (AP)

Kothapalli Koteswara Rao v. Murukonda Subba Rao

2002-09-02

DUBAGUNTA SUBRAHMANYAM

body2002
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) BOTH these appeals arise out of the judgment and decree dated 25-8-1990 in a. S. No. 88 of 1986 on the file of II! Additional district Judge, Guntur, modifying the judgment and decree dated 6-6-1986 in o. S. No. 1179 of 1981 on the file of IV additional Munisif Magistrate, Guntur. 3rd respondent in the appeal before the lower appellate court is the appellant in s. A. No. 534 of 1990. Appellants 2 to 5 in the appeal before the lower appellate court are the appellants in S. A. No. 94 of 1993. ( 2 ) NECESSARY facts briefly for the disposal of these two appeals are as follows: the appellants in S. A. No. 94 of 1993 and another person by name M. Subba Rao filed a civil suit in O. S. No. 1179 of 1981 on the file of IV Additional Munsif Magistrate, Guntur, against the decree holder - first defendant and judgment debtor - second defendant requesting the trial court to set aside the order dated 20-3-1981 passed in e. A. No. 904 of 1979 in E. P. No. 677 of 1973 in o. S. No. 863 of 1972 and to declare that the plaint schedule property is not liable to be attached and proceeded against in execution of the decree in O. S. No. 863 of 1972 on the file of the said court and for costs of the suit. For the disposal of these appeals, the averments in the plaint as well as the averments in the written statements need not be stated. It is sufficient to notice that the suit was filed to set aside an order passed by the Executing Court in a claim petition filed under the provisions contained in Order XXI Rule 58 C. P. C. The appellant in s. A. No. 534 of 1990 is not a party to the said suit. After contest on merits, the trial court dismissed the suit with costs of the first defendant - decree holder. Aggrieved by the judgment, all the plaintiffs preferred an appeal in A. S. No. 88 of 1986 on the file of III additional District Judge, Guntur. During the pendency of the said appeal, the court auction purchaser, namely, the appellant in s. A. No. 534 of 1990 got hunself impleaded as the third respondent in A. S. No. 88 of 1986. During the pendency of the said appeal, the court auction purchaser, namely, the appellant in s. A. No. 534 of 1990 got hunself impleaded as the third respondent in A. S. No. 88 of 1986. After hearing both the parties, by its judgment dated 25-8-1990 the lower appellate court modified the judgment and decree of the trial court. The lower appellate court raised the attachment regarding the share of the first plaintiff and it held that the attachment of the property relating to the shares of the other plaintiffs concerned is valid. The lower appellate court decreed the suit in part as mentioned supra. Aggrieved by the judgment, the parties concerned, as stated supra, preferred the present two appeals. ( 3 ) THE substantial question of law that arises for consideration in the present appeals is whether the suit filed to set aside an order passed in a petition filed under order XXI Rule 5 C. P. C. , is maintainable and the only remedy of the aggrieved parties is to prefer an appeal against the order in e. A. No. 904of 1979? ( 4 ) POINT: The learned Senior Counsel sri T. Veerabhadrayya invited the attention of this court to a Full Bench decision of this court in Pallamreddy Masthan Reddy v. Nellore Finance Corporation. In para 22 of the judgment in the ultimate analysis this court laid down the following principles of law. " (1) Old suits, that is to say, the suits instituted under the repealed Rule 63 before the commencement of the Amendment Act continue to be governed by the old provisions unaffected by the amendments, by virtue of sub-clause (ii) of Clause (q) of Section 97 (2 ). (2) The claim petitions disposed of before the Amendment Act but in respect of which suits were not filed by the date of Amendment Act, should also be treated on the same footing as Category (1) above. On the disposal of the claim petition, which would have been disposed of in accordance with the old procedure, the right to file a suit undoubtedly accrued to the party and he can therefore avail of that remedy irrespective of the amendment. The claim petition dealt with and disposed of before the Amendment Act in accordance with the old procedure should logically and necessarily be subject to the result of suit under the repealed Rule 63. The claim petition dealt with and disposed of before the Amendment Act in accordance with the old procedure should logically and necessarily be subject to the result of suit under the repealed Rule 63. Such a suit could be filed even after the Amendment act provided the period of limitation had not expired. (3) Pending claim petitions, that is to say, those filed before the amendment Act and pending on the date of commencement of the amendment Act will have to be disposed of by the new procedure laid down by amended Rules 58 and 59, irrespective of prior attachment. In other words, instead of a summary investigation into possession, there should be a full fledged enquiry into the right, title and interest as well. The order passed therein shall be treated as a decree and subject to appeal. The same Rule will apply to the claim petitions filed after the Amendment act". The claim petition in the Executing Court was filed by the plaintiffs after the amended provisions of Code of Civil Procedure came into force. Therefore, even as per the above judgment, the suit as instituted by the plaintiffs to set aside the claim order is not maintainable. The learned counsel sri T. Veerabhadrayya contended that the defendants did not take the plea that the suit is not maintainable. He also contended that when the suit was instituted, the trial court ought to have noticed that the suit is not maintainable and rejected the plaint at the threshold itself. Conceding that the above mistake took place, he contended that in the suit and even before the lower appellate court, such an objection was not taken. It is for the plaintiffs to choose a right forum. They cannot blame others for the mistake admittedly committed by them. The plaintiffs cannot take shelter under the ground that at the inception of the suit the trial court failed to notice that the suit is not maintainable before the trial court. It is clear to my mind that the suit as instituted before the trial court is not maintainable and it is liable to be dismissed in limine without considering the rival contentions and other disputes raised by the parties. It is clear to my mind that the suit as instituted before the trial court is not maintainable and it is liable to be dismissed in limine without considering the rival contentions and other disputes raised by the parties. In fact either of the parties even during the course of hearing of this second appeal did not contend that the suit is not maintainable and the only remedy of the plaintiffs is to file a regular appeal against the claim order passed by the Executing court. This legal position was brought to the notice of the learned counsel for both the parties by this court. Just because the pure legal position was not noticed in the beginning, Civil Court would not get jurisdiction to dispose of a suit, which otherwise it has no inherent jurisdiction to entertain it. In fact the present suit amounts to a second suit for the same relief and on the same cause of action inasmuch as after the amendment of Code of Civil Procedure in 1976, the claim application enquiry is akin to a trial in a regular civil suit. ( 5 ) THE learned Senior Counsel sri T. Veerabhadrayya further requested this court to remand the suit to the trial court. According to him a suit can be filed if the property had already been sold by the time the claim is preferred or the objection is made. He also contended that the claim application can be rejected by the Executing court if it comes to the conclusion that the claim or objection was designedly or unnecessarily delayed. In this regard, he invited the attention of this court to provisos (a) and (b) in Order XXI Rule 58 (1) c. P. C. It is surprising that even though the suit was filed to set aside an order passed in a claim petition by the Executing Court, the plaintiffs did not produce the said order before the trial court either along with the plaint or during the course of the trial. It is not known why the plaintiffs failed to produce the copy of the order assailed in the suit. It is for the plaintiffs to show that the claim petition was filed after the property attached was already sold or that the Executing Court refused to entertain the claim application on the ground that the claim or objection was designedly or unnecessary delayed. It is for the plaintiffs to show that the claim petition was filed after the property attached was already sold or that the Executing Court refused to entertain the claim application on the ground that the claim or objection was designedly or unnecessary delayed. When the plaintiffs failed to produce the copy of the order passed by the Executing Court in a claim petition, at this belated stage it is not necessary for this court to remit back the suit to the trial court to find out for what reason the claim application was dismissed by the executing Court. No such opportunity need be given now to the plaintiffs to fill up the gaps or latches on their part. It was further contended that the plaintiffs may be given liberty to avail any other course left to them in accordance with law to seek the relief of setting the order passed by the Executing court in the claim application in E. A. No. 904 of 1979. In this judgment the said aspect need not be considered. The point is answered in favour of the appellant in s. A. No. 534 of 1990 and against the appellants in S. A. No. 94 of 1993. ( 6 ) FOR the reasons stated above, I dismiss both the second appeals and restore the judgment and decree of the trial court dismissing the suit. In the circumstances, no order as to costs.