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Telangana High Court · body

2023 DIGILAW 405 (TS)

Ch Kranti v. G. Ganesh Goud

2023-06-05

SUREPALLI NANDA

body2023
ORDER : Heard learned counsel for the petitioner and learned counsel for the respondent. 2. For the sake of convenience the parties are referred to as they are arrayed in the suit before the lower Court. 3. This civil revision petition is filed challenging the propriety and legality of the order dated 10.03.2023 in I.ANo.76 of 2023 in O.S.No.10 of 2023 passed by the Court of the Principal Senior Civil Judge at Wanaparthy. 4. The plaintiff filed the suit against the defendant for recovery of a sum of Rs.21,62,333/-on the strength of pronote dated 23.05.2020. Along with the suit he filed I.A.No.76 of 2023, under Order 38 Rule 5 C.P.C. seeking attachment before judgment of the petition schedule property contending inter alia that the defendant was trying to sell away the property and leave the jurisdiction of the Court with an intention to defeat the decree that may be passed against him. The lower Court after considering the petition and material on record by order dated 10.02.2023 issued notice to the defendant with a direction to the Field Assistant of the Court to call upon the respondent/defendant to furnish third party security for the suit amount within 72 hours from the date of receipt of the notice, or to show cause as to why he should not furnish security, failing which to attach the petition schedule property and posted the matter to 24.03.2023. 5. Feeling aggrieved by the above order, the revision petitioner being a third party challenged the order mainly contending that the 2nd respondent/defendant about one year ago entered into agreement with him for sale of the petition schedule property and pursuant to the agreement he executed registered sale deed bearing document No.2983 of 2023, dated 27.02.2023 and that his name was mutated in revenue record and that the 1st respondent/plaintiff filed the suit subsequently, without disclosing the true facts and that therefore, the impugned order is liable to be set aside. 6. 6. A careful perusal of the impugned order shows that it is only a notice issued to the 2nd respondent/defendant calling upon him to furnish third party security for the suit amount within 72 hours from the date of service of the notice or to show cause as to why he should not furnish security and it was only when he (respondent No.2) failed to furnish security or show cause for not furnishing security the schedule property was directed to be attached. In fact, the impugned order does not show that the schedule property was attached. The 1st respondent /plaintiff in his counter did not state anything as to what happened subsequent to issuance of the notice dated 10.03.2023 as can be seen from the impugned order next date of hearing was on 24.03.2023 on that day the Field Assistant must have filed report before the lower Court whether the 2nd respondent furnished third party security or not or showed costs for not attaching the property, or he (Field Assistant) attached the property following the failure of the 2nd respondent to furnish third party security. 7. The revision petitioner who is a third party to the proceedings should feel aggrieved only when the petition schedule property is attached for according to her, it is she and not the 2nd respondent who is owner of the property. But the 1st respondent contends that the revision petitioner in collusion with the 2nd respondent brought into existence the alleged sale deed dated 27.02.2023. Regardless of the truth or otherwise of that allegation, even assuming that the revisio petitioner is the owner of the property and that the 2nd respondent is not the owner of it, and the property is attached, the revision petitioner instead of rushing to the Court, ought to have approached the lower Court itself with an application under Order 38 Rule 8 C.P.C. As per that provision when any claim is preferred to property attached before judgment, which claim shall be adjudicated upon in the same manner as provided for adjudication of claims to property attached in execution of a decree for payment of money. If in fact, the property is attached, the revision petitioner can invoke the provision under Order 38 Rule 5 C.P.C. before the lower Court with an application by raising the attachment on the ground that she has purchased the property under the registered sale deed dated 27.02.2023 and that the 2nd respondent is not at all owner of the property. 8. With the above observations, the civil revision petition is disposed of. It is made clear that in case the revision petitioner filed application under Order 38 Rule 8 C.P.C. the lower Court shall dispose off the application without being influenced by any of the observations made in this order. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.