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Andhra High Court · body

2006 DIGILAW 923 (AP)

Yada Laxmi v. Sona Finance Corpn. , Sircilla

2006-08-02

G.ROHINI

body2006
O R D E R This revision petition is directed against the order dated 20-03-2006 in I.A.No.110 of 2002 in I.A.No.54 of 2000 in O.S.No.6 of 2000 on the file of the Senior Civil Judge, Siricilla. 2. The suit was filed by the first respondent herein against respondents 2 and 3 herein for recovery of a sum of Rs.1,50,000/-. Pending the above suit, the first respondent-plaintiff filed I.A.No.54 of 2000 under Order 38 Rule 5 of the Code of Civil Procedure seeking attachment before judgment of house bearing No.7-1-105 lat Siricilla and the Court below ordered attachment as prayed for. While so, the revision petitioner, who is a third party to the proceedings, filed I.A.No.110 of 2000 under Order 38, Rule 8 of the “Code of Civil Procedure to raise the attachment of the property before judgment effected on 29-04-2003 in I.A.No.54 of 2000. She pleaded ownership to the house bearing No.7-1-105 claiming that she purchased the same from one Mittapalli Venkataiah and others under a registered sale deed dated 25-01-1979 out of the income from her stridhana property. It was also pleaded that necessary mutations were effected in the municipal records and that respondents 2 and 3 herein i.e. defendants in the suit have no right in respect of the said house. The said application was contested by the first respondent-plaintiff contending that the claim petitioner (revision petitioner) had neither any stridhana property nor any independent income to purchase the house bearing No.7-1-105 as claimed by her. Before the Court below, the claim petitioner (revision petitioner) got herself examined as P.W.1 and she also examined another witness as P.W.2. On behalf of the first respondent-plaintiff, two witnesses were examined. Apart from that one Yada Jagannatham was examined as Court witness as C.W.1 at the instance of the plaintiff. Exs.P.1 and P.2 documents were marked on behalf of the claim petitioner and on behalf of the first respondent-plaintiff, Exs.R.1 to R.10 documents were marked. The Court below, on appreciation of the evidence adduced by both the parties, recorded a finding that the house in question-was purchased from and out of the income of the joint family of C.W.1 and held that the revision petitioner was only a benamidar. Accordingly I.A.No.110 of 2002 was dismissed by order dated 20-03-2004. 3. Aggrieved by the same, this revision petition is filed by the claim petitioner under Article 227 of the Constitution of India. Accordingly I.A.No.110 of 2002 was dismissed by order dated 20-03-2004. 3. Aggrieved by the same, this revision petition is filed by the claim petitioner under Article 227 of the Constitution of India. 4. I have heard the learned counsel for the both the parties and perused the material on record. 5. The learned counsel for the first respondent-plaintiff; at the outset, raised a preliminary objection as to the maintainability of the revision petition contending that against the order impugned, only a regular appeal lies since it is a decree as defined under Section 2(2) of the Code of Civil Procedure. 6. On the other hand, the learned counsel for the revision petitioner (claim petitioner) contended that the order impugned being an interlocutory order pending the suit, it cannot be treated as a decree. 7. It is to be noted that though the prayer in I.A.No.110 of 2002 was to raise the attachment effected under Order 38 Rule 5 of the Code of Civil Procedure, virtually, it was a claim preferred by a third party to the suit proceedings. Order 38 Rule 8 of the Code of Civil Procedure provides for adjudication of such claim to property attached before judgment. 8. Rule 8 of Order 38 of the Code of Civil Procedure reads as under: Adjudication of claim to property attached before judgment: Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property attached in execution of a decree for the payment of money. 9. A bare perusal of the above provision shows that any claim to the property attached before judgment shall be adjudicated upon in the manner provided for the adjudication of claims to the property attached in execution of a decree for the payment of money. Order 21 Rule 58 of the Code of Civil Procedure provides for the adjudication of claims to the property attached in execution of a decree for the payment of money and sub-rule (4) of Rule 58 of Order 21 of the Code of Civil Procedure makes it clear that where any claim or objection has been adjudicated upon under Rule 58 of Order 21, the order made thereon shall be treated as a decree. Sub-rule (4) of Rule 58 of Order 21 of the Code of Civil Procedure reads as under: “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.” 10. A Full-Bench of this Court in P.MASTHAN REDDY V. NELLORE FINANCE CORPORATION(1), having considered the scope and object of the above provision held that the claim or objection made under Rule 58 of Order 21 of the Code of Civil Procedure is virtually a suit for title and possession and therefore, an appeal is provided against the adjudication of the claim just as an appeal against the decree in a suit. 11. Another full-bench of this Court in GURRAM SEETHARAM REDDY V. GUNTI YASHODA(2) reiterated the same, holding that against the orders passed under sub-rule (3) of Rule 58 of Order 21 of the Code of Civil Procedure, a regular appeal Under Section 96 lies and not a miscellaneous appeal under Section 104 read with Order 43 Rule 1 of the Code of Civil Procedure. 12. In the light of the unambiguous language of Rule 8 of Order 38 of the Code of Civil Procedure read with sub-rule (4) of Rule 58 of Order 21 of the Code of Civil Procedure, this revision under Article 227 of the Constitution of India cannot be maintained against the order impugned which was nothing but adjudication of claim to proerty attached before judgment. In the circumstances, the preliminary objection raised by the learned counsel for the first respondent is upheld and accordingly, the revision petition is dismissed as not maintainable. However, it is made clear that this Court has not expressed any opinion on merits and it is open to the petitioner to work out the remedy of appeal if so advised. No order as to costs. --X—