VENKATACHALA FINANCE, TADEPALLYGUDEM, WEST GODAVARI DISTRICT v. DEVABHAKTANI SURYACHANDRA RAO
2006-03-01
L.NARASIMHA REDDY
body2006
DigiLaw.ai
( 1 ) THESE four civil revision petitions arise out of four applications filed by the plaintiff in O. S. No. 51 of 1999 on the file of the Court of the senior Civil Judge, Tadepalligudem. ( 2 ) THE petitioner filed the suit against respondents 1 and 2 for recovery of a sum of rs. 1,90,226/ -. It is stated that respondents 1 and 2 borrowed a sum of Rs. 2,00,000/- for the purpose of purchasing a bus bearing no. AP 37 U 5234 under a hire-purchase agreement. It is further stated that out of 36 installments, the respondents 1 and 2 paid only 12 installments, and thereafter committed default. ( 3 ) ALONG with the suit, the petitioner filed I. A. No. 1372 of 1999 under Order xxxviii Rule 5 of the Code of Civil procedure, 1908, (for short "cpc") and got attached, an item of immovable property. Thereafter, the third respondent herein filed i. A. No. 433 of 2000 for raising the attachment, and pleaded that respondents 1 and 2 have no right over the said item of the property. The interlocutory application is said to be still pending. ( 4 ) PETITIONER filed I. A. (SR) No. 1787 of 2004 to implqad the third respondent herein as defendant No. 3 in the suit, i. A. (SR) No. 1783 of 2004 to implead her as respondent No. 3 in I. A. No. 1372 of 1999, i. A. (SR) No. 1786 with a prayer to reopen the suit, and I. A. No. 1785, with a prayer to reopen I. A. No. 433 of 2000. The trial Court refused to entertain all the applications. Hence, these four revisions. ( 5 ) LEARNED Counsel for the petitioner submits that respondents 1 and 2 offered an item of immovable property as security for repayment of the loan, and the same property was attached before judgment, through orders in I. A. No. 1372 of 1999. She contends that since the third respondent herein is making a claim over that very property, she is a proper and necessary party to the suit as well as to the interlocutory application, and the trial Court ought to have entertained the applications. ( 6 ) LEARNED Counsel for respondent no.
She contends that since the third respondent herein is making a claim over that very property, she is a proper and necessary party to the suit as well as to the interlocutory application, and the trial Court ought to have entertained the applications. ( 6 ) LEARNED Counsel for respondent no. 3, on the other hand, submits that in a suit for recovery of money simplicitor, except the borrowers, and guarantors, if any, no other person can be impleaded, and that no exception can be taken to the rejection of the applications filed by the petitioner. ( 7 ) FROM a perusal of the prayer in the plaint, it is evident that it is filed for recovery of a sum of Rs. 1,90,226/- and no other relief is claimed. The petitioner filed an application under Order XXXVIII Rule 5 cpc and obtained an order of attachment before judgment in respect of an item of immovable property. It was at that stage that the third respondent herein filed i. A. No. 433 of 2000, making a claim over the said item of the property. The enquiry is said to be still in progress. ( 8 ) THE necessity or occasion for the petitioner to implead the third respondent, in the suit or in I. A. No. 1372 of 1990, would have arisen, if only it had claimed any relief against her. Further, it is not a suit for mortgage, in which event, the necessity for adjudicating the claim of the third respondent in relation to the mortgaged property would have arisen. The manner, in which the property, which was attached before judgment, was offered as security, is also not pleaded. ( 9 ) EVEN assuming that the suit is decreed as prayed for, nothing prevents the petitioner from executing the decree in the manner known to law. The question of adjudicating the claim of the third respondent, vis-a-vis any property attached during the course of execution, would arise, if only an application is made under Order XXI rule 58 CPC. Further, even in the limited context of continuing the attachment before judgment over the same item of the property, the petitioner has adequate opportunity against the third respondent, since I. A. No. 433 of 2000 is filed by the latter herself.
Further, even in the limited context of continuing the attachment before judgment over the same item of the property, the petitioner has adequate opportunity against the third respondent, since I. A. No. 433 of 2000 is filed by the latter herself. To determine the claim of the third respondent vis-a-vis the property, which is attached before judgment, it is not necessary either to reopen the suit or interlocutory application or to implead the third respondent in I. A. No. 1372 of 1999. In I. A. No. 433 of 2000, filed by the third respondent, it shall always be open to the petitioner to put forward all the contentions. In that view of the matter, no exception can be taken to the orders under revision. ( 10 ) ACCORDINGLY, the civil revision petitions are dismissed leaving it open to the petitioner to pursue its remedies and put forward all its contentions in I. A. No. 433 of 2000 or in any other proceedings initiated against it. There shall be no order as to costs.