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2018 DIGILAW 792 (AP)

Syamala Sandhya Rani v. Mallam Pudi Padmavathi

2018-10-31

M.SEETHARAMA MURTI

body2018
ORDER : M. SEETHARAMA MURTI, J. 1. Submissions of the learned counsel appearing for the 3rd parties/claim petitioners/appellants in the annexed unregistered appeal suit are heard. 2. The reasons for listing this unregistered appeal suit before this Court under the caption 'for orders of Court', in brief, are as follows: The 1st respondent/Decree Holder (DHr) obtained a decree against the 2nd respondent/Judgment Debtor (JDr) in O.S. No. 75 of 2011 and filed EP 27 of 2014 on the file of the Senior Civil Court, Ramachandrapuram, for sale of the EP schedule property for realization of the decree debt with subsequent interest, costs and the costs of execution. The appellants herein/claim petitioners filed a claim petition in E.A. No. 679 of 2017 under Order XXI Rule 58 read with Sections 47, 141 and 151 of the Code of Civil Procedure, 1908, requesting to adjudicate their right, title and interest over the EP schedule property and declare that the petitioners/appellants are the undivided share holders of the EP schedule property. The DHr resisted the said claim petition. After full-fledged enquiry, the Court below dismissed the claim petition. Aggrieved thereof, the unsuccessful claim petitioners filed the instant appeal, which is yet to be registered. 3. At the time of scrutiny, the office of this Court returned the above said unregistered appeal ASSR with the following objection: "Please clarify and state as to how the ASSR is entertainable against the Order dated 19.07.2018 in E.A. No. 679 of 2017 in E.P. No. 27 of 2014 in O.S. No. 75 of 2011, with a suit value of Rs. 9,94,073/- as the pecuniary jurisdiction to file in the Hon'ble High Court is above Rs. 10 lakhs, cost of award not included in the suit value." [Reproduced verbatim] 4. Learned counsel for the claim petitioners/appellants re-submitted the appeal with the following representation: 'The costs have to be included in the E.P., as was done in the present case by the decree holder. Hence costs ought to be included in the value of the appeal. Hence re-submitted.' 5. Since the Registry of the Court is not satisfied with the above submission, the matter is listed under the caption 'For Orders'. 6. Hence costs ought to be included in the value of the appeal. Hence re-submitted.' 5. Since the Registry of the Court is not satisfied with the above submission, the matter is listed under the caption 'For Orders'. 6. At the hearing, learned counsel for the claim petitioners/appellants submitted that the costs, which are included in the execution petition are also to be included in the valuation of the relief, the said costs being part of the subject matter of the appeal and that the amount including the costs constitutes the total value of the relief in the present unregistered appeal and that as the total value on such inclusion of the costs also worked out to Rs. 10,15,146/-, this Court is having jurisdiction to entertain the proposed first appeal arising out of the order dismissing the claim petition. 7. As could be seen from the objection raised by the office, the submission of the office of this Court appears to be is that the costs are not to be included and the value without including costs, that is, the value of Rs. 9,94,073/- as mentioned in the Memorandum of subject proposed appeal has only to be taken into consideration; and, hence, the appeal would not lie before the High Court. 8. I have given earnest consideration to the facts & submissions. 9. It is to be first noted that appellants/claim petitioners filed before the Court below, a claim petition under Order XXI Rule 58 of the Code. Learned Senior Civil Judge dismissed the said claim petition. Hence, the appellants, who are the unsuccessful claim petitioners, filed this instant unregistered appeal assailing the said order. In the above stated factual back drop, it is apt to first refer to the relevant legal position laid down in the Full Bench decision of this Court in Gurram Seetharam Reddy vs. Gunty Yashoda 2004 (6) ALT 111 . Indeed, a Division Bench of this Court expressed the view that the judgment in B. Noorkaraju v. M.S.N. Charities, [ AIR 1994 AP 334 ] needs reconsideration. It related to the interpretation of Clause (4) of Rule 58 of Order XXI, CPC. Indeed, a Division Bench of this Court expressed the view that the judgment in B. Noorkaraju v. M.S.N. Charities, [ AIR 1994 AP 334 ] needs reconsideration. It related to the interpretation of Clause (4) of Rule 58 of Order XXI, CPC. While making a reference, the Division Bench framed the question as under: "Whether, against an order passed under Order XXI, Rule 58 of the Code in respect of a claim or objection to the attachment of property, a regular appeal would lie as an appeal against the decree, or, a Miscellaneous Appeal against the order?" While answering the said question, the Full Bench of this Court held as follows: (a) Against the orders passed under Rule 58(3) and Rules 98 and 100 of Order XXI, CPC regular appeals under Section 96 and not miscellaneous appeals under Section 104 read with Order XLIII, Rule 1, CPC are maintainable and that the judgment of this Court in Nookaraju's case (supra) does not represent the correct position of law. (b) The Court fee payable on such appeals shall be the one calculated in accordance with Article 11(i) or 3(i) of Schedule II of Court Fees Act, as the case may be read with Section 49 of the AP Court Fees and Suits Valuation Act. (c) A second appeal under Section 100, CPC is maintainable against an order passed in an appeal, arising out of order passed under Rule 58(3) or Rules 98 and 100 of Order XXI, CPC. Thus, as per the settled legal position, there is no dispute in regard to the proposition that a regular appeal filed under Section 96 of the Code is maintainable against the orders dismissing the claim petition filed under Order XXI Rule 58 of the Code. 10. Thus, as per the settled legal position, there is no dispute in regard to the proposition that a regular appeal filed under Section 96 of the Code is maintainable against the orders dismissing the claim petition filed under Order XXI Rule 58 of the Code. 10. It is to be now noted that Clause (i) of Article 11 of Schedule II of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956, reads as under: Article Particulars Proper fee (1) (2) (3) 11 (i) Application or petition under Section 47 and Order XXI, Rule 58 and 90 of the Code of Civil Procedure, 1908- (i) When filed in a Revenue Court or a District Munsiff's Court; (ii) when filed in a subordinate Judge's Court or a District Court; (iii) When filed in the High Court One rupee Two rupee Five rupees It is apt to note that the legislature in its wisdom fixed the fixed Court fee on the basis of the Court in which the claim petition is to be filed. As per the Full Bench decision of this Court in an appeal filed against an order dismissing a claim petition, fixed court fee is payable on the relief, as specified in the above mentioned provision of law. In the case on hand, the question precisely is not about either the valuation of the relief or the court fee payable; but, the question is this:-'Whether the instant appeal assailing an order passed by the learned Senior Civil Judge dismissing a claim petition filed under Order XXI Rule 58 of the Code would lie before the District Court or this Court?' 11. Section 17 of the Andhra Pradesh Civil Courts Act, 1972, (as it stood after its amendment (vide the Amendment Act 16 of 2005) reads as under. Section 17. Section 17 of the Andhra Pradesh Civil Courts Act, 1972, (as it stood after its amendment (vide the Amendment Act 16 of 2005) reads as under. Section 17. Appeals from the decrees and order of Court in the District:- (1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding--- (i) of the District Court, to the High Court; (ii) of the Court of Subordinate Judge- (a) to the District Court, when the amount or value of the subject - matter of the suit or proceeding is not more than rupees five lakhs; (b) to the High Court, in other cases; and (iii) of the Court of District Munsiff, to the District Court." The decisive words used in the above Section 17 are - 'the amount or value of the subject-matter of the suit or proceeding'. Therefore, if the appeal against the decree passed in the suit were to lie to the District Court, then, the appeal of the instant nature would lie to the District Court. If the said appeal against the decree passed in the suit were to lie to the High Court, the appeal of the instant nature will have to be entertained by this Court. Therefore, the decisive factor is the Jurisdictional Court, that is, the Court, which is competent to entertain the appeal against the decree passed in the original suit. To put it in other words, the Court having jurisdiction to entertain the appeal against the decree passed in the original suit is the competent Court to entertain the appeal against the order passed in a claim petition filed under Order XXI Rule 58 of the Code. 12. However, the copy of the decree passed in the original suit is not filed with the material papers. Hence, the Registry is directed to return the unregistered appeal/AS(SR) [with its enclosures] to the appellants, as per procedure, to enable them to examine the jurisdictional issue with reference to the legal position enunciated supra and accordingly present the proposed appeal to the appropriate Court having jurisdiction to entertain such an appeal.