JUDGMENT B.S. Bhanumathi, J. - Questioning the orders, dated 13.07.2011, passed in I.A. No. 66 of 2006 in I.A. No. 102 of 2005 in O.S. No. 90 of 2005 on the file of the Court of II Additional Senior Civil Judge, Kakinada, filed under Order 38 Rule 8 of CPC, the appellant/1st respondent/plaintiff initially preferred CMA 1400 of 2011 before this Court. On the objection raised by the respondents as regards the maintainability of the appeal, the appellant filed a petition in C.M.A.M.P. No. 1737 of 2012 to convert the CMA into first appeal. Accordingly, by order, dated 11.09.2012, the said petition was allowed and the civil miscellaneous appeal was converted into a first appeal. 2. Whereas, the respondents/claimants/3rd parties preferred Cross objections No. 6715 of 2012 against the order, dated 11.09.2012, insofar as it relates to the findings on point No. 1. 3. Heard Sri T.V.S. Prabhakara Rao, learned counsel for the appellant and Sri K. Someswara Kumar, learned counsel for the respondents. Though Cross Objections No. 6715 of 2012 have been filed by the third parties, there is no appearance on their behalf. 4. The facts to the extent relevant, in brief, are as follows: The appellant is the 1st respondent/plaintiff. The respondents 1 & 2 herein are the claimants/3rd parties to the suit. The 3rd respondent herein is the 2nd respondent/defendant. Respondents 1 & 2 herein are the residents of Parvathipuram. They are the sons of the 3rd respondent. Plaint 'A' schedule properties are the self acquired properties of the 3rd respondent. Later, out of love and affection, he executed a registered gift deed, dated 23.03.2005 in favour of the respondents 1 & 2 and delivered possession of the said properties to them. Thus, the respondents 1 & 2 have become lawful owners of the said properties. Plaint 'B' and 'C' schedule properties are the self acquired properties of their paternal grandfather, late Tadi Satyanarayana Reddy, executed a Will, dated 14.04.2004, in a sound and disposing state of mind, bequeathing the properties covered by 'B' and 'C' schedules in favour of the respondents 1 & 2. Thus, they became lawful owners of the petition A, B and C schedule properties. Thus, they became lawful owners of the petition A, B and C schedule properties. They learnt that the petition A, B and C schedule properties were attached by the appellant/plaintiff in the above suit due to which the respondents 1 & 2 are unable to dispose of the same for pursuing higher education. 5. The 3rd respondent/2nd respondent/defendant has not filed any counter. 6. The appellant/1st respondent/plaintiff filed counter denying the allegations and contending that as the 3rd respondent/defendant, who is no other than the father of the 1st and 2nd respondents/claimants 1 & 2, failed to repay the appellant Rs. 5,00,000/- borrowed on 03.03.2003 under a pronote and the petition schedule properties were got attached on 14.03.2005, in the suit filed against him, but having come to know it, the 3rd respondent executed a registered gift-cum-settlement deed in favour of his sons in respect of the petition 'A' schedule property with a view to defeat the suit claim and that the Will, dated 14.04.2004, is collusively fabricated by them in respect of petition 'B' and 'C' schedule properties, created only for the purpose of this petition and hence, the same is liable to be dismissed with exemplary costs. 7. On the basis of the above pleadings, the trial Court framed the following points for consideration: 1. Whether the Will, dated 14.04.2004 relied on by the petitioners is genuine and as such attachment over the petition B and C schedule properties is liable to be raised? 2. Whether the attachment on the petition 'A' schedule property is valid in view of the gift deed, dt. 23.3.2005 executed by the 2nd respondent in favour of the petitioners? 3. Whether the petitioners are entitled for raising attachment over the petition A, B and C schedule properties as prayed for? 4. To what relief? Before the trial Court, on behalf of the plaintiff, PWs 1 to 3 were examined and exhibits A1 to A7 were marked. On behalf of the 1st respondent, RW 1 was examined. 8. 3. Whether the petitioners are entitled for raising attachment over the petition A, B and C schedule properties as prayed for? 4. To what relief? Before the trial Court, on behalf of the plaintiff, PWs 1 to 3 were examined and exhibits A1 to A7 were marked. On behalf of the 1st respondent, RW 1 was examined. 8. The trial Court, by the order impugned, partly allowed the petition, raising attachment over 2/3rd share of the claim petitioners in petition 'B' and 'C' schedule properties disbelieving the will under exhibit A6, but holding that they have 2/3rd share therein and raising attachment over petition 'A' schedule property, though finding that the gift deed is not genuine, observing that the appellant ought to have filed a suit for declaration that the transaction under the gift deed under exhibit A3 as fraudulent transfer in terms of Section 53 of the Transfer of Property Act. Hence, this appeal by the appellant/plaintiff. 9. In view of the argument advanced on the limited aspect of disposing I.A. No. 66 of 2005 after disposal of the suit, it is not necessary to go into other contentions raised in the grounds of appeal on other aspects in the impugned order. 10. The main and the only argument of the appellant at the time of hearing of the appeal is that the petition was erroneously disposed of by the trial Court after disposal of the main suit. In this regard, learned counsel for the appellant placed reliance on the decision of the Supreme Court in Ram Swaroop Sankla and others v. Chandrapal Singh and others 2007(2) ALT 12 , wherein at paragraphs No. 9 and 10 it was held as under: '9. Notwithstanding the aspects referred to above, it clearly emerges that with the disposal of the suit, the whole exercise of filing of an application under Order XXXVIII Rule 8 CPC or the necessity to substitute the parties therein, become unnecessary and impermissible. Once a decree is passed, the claim of any third party must be presented through an application filed under Order XXI Rule 58 of CPC, and not under Order XXXVIII. 10. Once a decree is passed, the claim of any third party must be presented through an application filed under Order XXI Rule 58 of CPC, and not under Order XXXVIII. 10. For the foregoing reasons, the civil revision petition is disposed of, directing that the order under revision is superfluous, without leading to adjudication of any rights and that it shall be open to the petitioners to present an application under Order XXI Rule 58 of CPC, stating their claim. As and when such application is filed, it shall be dealt with on its own merits, uninfluenced by any observations made in the Order passed in I.A. No. 540 of 2003. There shall be no order as to costs.' 11. In view of the above legal proposition which is undisputed, the trial Court committed error in disposing of the application, on merits, after disposal of the suit. 12. Since the remedy to respondents 1 & 2 is still available in the execution proceedings, if initiated against the property by sale, it is left open for them to pursue such remedy. Therefore, the impugned order is liable to be set aside. It is not informed to this Court that any such property/properties was/were disposed after passing the impugned order. 13. Accordingly, the appeal is allowed setting aside the order, dated 13.07.2011, passed in I.A. No. 66 of 2006 in O.S. No. 90 of 2005 and the order of attachment is restored and is made absolute, if not alienated by the date of this order. Accordingly, I.A. No. 66 of 2006 is closed. Though Cross Objections No. 6715 of 2012 has been filed, as the party, who has filed cross-objections has neither appeared nor advanced any arguments; the same are dismissed for non-prosecution. Miscellaneous petitions pending, if any, shall stand closed.