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2003 DIGILAW 33 (AP)

Akula Parthasarathi v. Rajya laxmi

2003-01-08

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Sri Kowturu Vinaya kumar and Sri Satyanarayana the Counsel representing the respective parties. ( 2 ) THE Civil Miscellaneous Appeal is filed by the appellants/claim petitioners aggrieved by the order passed in E. A. No. 346 of 2000 in E. P. No. 214 of 1998 dated 17-9-2001 on the file of Principal Junior civil Judge, Khammam. ( 3 ) THE facts in brief are that the appellants/claim petitioners preferred E. A. No. 346 of 2000 in E. P. No. 214 of 1998 on the ground that they are the children of the judgment Debtors 2 and 3 constituting a joint Hindu Family and several allegations have been made that the said judgment debtors are addicted to vices and hence the appellants/claim petitioners were not born by the date of the decree. It is also stated that the claimants are entitled to the respective shares and the matter was opposed. Ultimately, the claim petition was dismissed. As against the same the present Civil miscellaneous Appeal is filed. ( 4 ) SRI Kowturu Vinaya Kumar, learned counsel representing the appellants had submitted that no doubt E. A. No. 346 of 2000 in E. P. No. 214 of 1998 on the file of Principal junior Civil Judge, Khammam was filed under Order 21, Rule 58 of the Code of civil Procedure and as against the said order civil Revision Petition under Section 115 of the Code of Civil Procedure was filed before this Court and in view of the objection raised by the office the same was converted into Civil Miscellaneous Appeal. The learned counsel also submitted that since this is an order passed by the Principal Junior Civil judge, Khammam, the appeal goes to the appellate Judge and not to this Court. ( 5 ) PER contra Sri Satyanarayana, learned Counsel representing the contesting respondent had submitted that since the claim is not a bona fide one and had been thought of only to delay the matter and inasmuch as the remedy is a misconceived remedy, the Civil Miscellaneous Appeal is liable to be dismissed. ( 6 ) ORDER 21 Rule 58 of the Code of civil Procedure deals with the adjudication of claims to, or objections to attachment of property and sub-section (4) reads. ( 6 ) ORDER 21 Rule 58 of the Code of civil Procedure deals with the adjudication of claims to, or objections to attachment of property and sub-section (4) reads. " (4) Where any claim or objection has been adjudicated upon under this Rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. " ( 7 ) IN B. Nookaraju v. M. S. N. Charities, air 1994 AP 334 , the Division Bench of this Court while dealing with the question whether Civil Miscellaneous Appeal can be filed against such an order, it was held that an order passed in claim against attachment of property in execution has the status of "deemed decree" and not "decree". Hence the Civil Miscellaneous appeal is competent. In the present case the question does not stop there. The appellants instead of preferring the Civil Miscellaneous appeal as against the impugned order to the concerned Appellate Court i. e. , the district Judge, Khammam had approached this Court straightaway which is not permissible in law. In view of the same, office is directed to return the papers to the Counsel for the appellants for the purpose of presenting the Civil Miscellaneous appeal to proper Court and on such return the appellants are permitted to present the civil Miscellaneous Appeal within a period of four weeks from today. ( 8 ) IT is needless to say that the stay granted by this Court is hereby vacated giving liberty to the appellants to move to the appropriate Court in this regard as specified supra. ( 9 ) ACCORDINGLY the Civil Miscellaneous appeal disposed of of.