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2008 DIGILAW 401 (AP)

T. Nabi Sab v. G. Venkatesulu

2008-06-23

G.V.SEETHAPATHY

body2008
ORDER Appea1 is directed against the order, dated 12.7.2007, in A$. No.15 of 2006 on the file of the IV Additional District Judge, Anantapur wherein the said appeal preferred against the order dated 3.11.2005 in E.A. No.162 of 2003 in E.P. No.51 of 2002 in O.S. No.169 of 1996 on the file of the Principal Senior Civil Judge, Anantapur was dismissed. 2. Heard learned Counsel for the appellant None appears for the respondent though served with notice. Perused the records. 3. Appellant herein is the claim petitioner who filed E.A. No.162 of 2003 in E.P. No.51 of 2002 in O.S. No.169 of 1996. The said Execution Petition was filed by the 1st respondent herein against the 2nd respondent for realization of the decretal amount due in the decree passed in O.S. No.169 of 1996. The claim of the appellant herein was dismissed by the learned Principal Senior Civil Judge, Anantapur on the ground that the petition filed under Order 21 Rule 58 CPC is not maintainable as there was no attachment of the property and the decree sought to be executed was a mortgage decree. Appeal preferred by the appellant herein in A.S. No.15 of 2006 was also dismissed by the learned IV Additional District Judge, Anantapur confirming the dismissal of the claim petition by the learned Principal Senior Civil Judge, Anantapur. The impugned orders of the Courts below do not call for any interference as the decree obtained by the 1st respondent against 2nd respondent was mortgage decree and the provisions of Order 21 Rule 58 CPC are not attracted. 4. Order 21 Rule 58 CPC states as follows : "Adjudication of claims to, or objections to attachment of property - (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained" 5. The above provision discloses that the said provision is attracted only where the claim is preferred, or objection is made to the attachment of any property which was attached in execution of a decree. 6. The above provision discloses that the said provision is attracted only where the claim is preferred, or objection is made to the attachment of any property which was attached in execution of a decree. 6. In the present case there being admittedly no attachment ordered in execution of the decree, the claim petition filed by the appellant herein is not maintainable and the same was rightly dismissed by the Courts below. No substantial questions of law arise for adjudication in this second appeal. Hence, the second appeal is dismissed. The appellant is, however, at liberty to seek the other remedies, if any, available to him under law.