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2025 DIGILAW 1219 (TS)

Pulakala Venkanna v. Vankayala Gandhi

2025-10-14

NARSING RAO NANDIKONDA

body2025
ORDER: NARSING RAO NANDIKONDA, J. This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order passed in I.A.No.367 of 2018 in O.S.No.187 of 2014 on the file of VII Additional District Judge, Khammam, wherein the respondent No.1 herein/plaintiff therein filed an application I.A.No.367 of 2018 under Order 38 Rule 5 read with section 151 of CPC for attachment of Suit Schedule Property before judgment which was acquired from Respondent/Defendant No.1 by way of gift deed in favour of Revision Petitioner. 2. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the trial Court as petitioner/plaintiff or respondent/defendant. 3. The brief facts of the case are that the plaintiff i.e. Respondent No.1 herein filed a suit for recovery of sum of Rs.15,19,559/- initially as against the respondent No.1/defendant No.1. During the pendency of the suit, an application was also filed by the respondent under Order 38 Rule 5 of the CPC seeking attachment of the said properties. Subsequently, during the pendency of the suit, it is brought to the knowledge of the respondent/plaintiff that the said Suit Schedule Property was transferred in the name of the defendant No.2 who was proposed respondent No.2 herein, As such the petitioner has withdrawn the said application and filed present I.A.No.367 of 2018 seeking attachment of the petition schedule property which was said to have been transferred in the name of the respondent No.2. 4. The same was contested by the respondent/proposed defendant No.2 contending that the respondent No.2 is a third party and the attachment of property of the proposed defendant seeking attachment of petitioners schedule property against the proposed defendants is not maintainable and he further admitted that the respondent herein is the own brother of defendant No.1 and the other parties are the joint purchasers of the property through a registered document in the year 2010 and the respondent No.1/defendant No.1 has 16% undivided share only in the said purchased land and that out of love and affection the same was transferred by way of gift deed in favour of the proposed respondents and it is contended that as on the date of passing of the order, the respondent No.1/defendant No.1 is not the owner of the petitioner schedule property and as such attachment order cannot be maintainable as per law against the respondent. 5. 5. It is further contended that Section 128 of T.P. Act is not applicable to the present petition as the main suit is pending and respondent No.1 has been contesting the suit, and that the present petition to attach the petition schedule property against the respondent No.2, who is still not a party to the suit proceedings, is not maintainable and prayed to dismiss the petition. So also, the respondent No.1/defendant No.1 filed a counter on similar lines and prayed to dismiss the petition. 6. The learned Judge on 12.04.2018, considering the third party affidavit filed and in view of the averments, that the subject gift was executed by D1 in favour of his own brother/D2 during the pendency of the suit in respect of the petition schedule property, upon which attachment was already ordered against D1, as such there was an ad-interim direction given to the proposed party/D2 not to alienate the petition schedule property until further orders, no doubt the present order which on the face of it was directing the respondent/defendant No.2 not to alienate the petition schedule property. 7. It is the contention of the learned counsel for the revision petitioner as he being a third party, the question of attachment of property under Order 38 Rule 5 cannot be made. In that case he is not liable to pay any amounts to the plaintiff. Admittedly, as on the said date of order of application the revision petitioner was a proposed party as application for impleading the petition also pending. Though the implead petition was dismissed against which a CRP was filed and the said I.A. for impleading was dismissed against which the CRP No.3072 of 2023 was filed and the same was allowed by this Court. As of now the revision petitioner is one of the party to the suit. 8. The other contention which is raised by the learned counsel for the petitioner is that, as on the date of the attachment as he being a third party and he has nothing to do with the said land transaction as property cannot be attached on several grounds which is raised by the learned counsel for the revision petitioner is that as per Order 38 Rule 5 a notice to show cause has to be issued prior to order of any attachment. It is also the grievance of the petitioner that even the order 38 Rule 5 is not complied with by the learned Judge before passing any orders of attachments and he also relied upon the judgement of this Court in the High Court of Judicature of Andhra Pradesh at Hyderabad cited in 1999 (4) ALT 65 in Para 7 and 8 is as below: “7. The counsel for the first respondent herein was not able to justify and support the impugned orders. This Court is of the considered view that the attachment under Order 38 Rule 5 C.P.C. cannot be ordered against the third party. The attachment before judgment has to be ordered against the defendant only to certain conditions being satisfied. There is no procedure prescribed in impleading the additional parties in both the I.As., when they were not added as parties in the suit.” “8.The money in the hands of third party also cannot be attached as a garnishee 9debtor’s debtor) unless a decree is passed in the suit. Such money can only be attached in execution proceedings and not in pendency of the suit. Therefore, this Court holds that both the orders in the I.As., are totally illegal and uncalled for. This Court is of the considered view that the learned Judge has not followed the simple legal principles. Hence, both the orders passed in the I.As., are set aside”. 9. Further as it is brought to the notice of this Court that respondent No.1 died during the pendency of the revision petition, as when a question arose that whether legal heirs of respondent No1 are necessary to be brought on record as the revision is pending. The learned counsel for the revision petitioner has contended that under this revision as it does not affect the power of the Court to entertain the revision as such no legal heirs need to be brought on record and he also further relied upon the Judgement of this Court in AIR 1966 AP 384 , wherein a question was raised before the division bench of this Court whether death of the party during pending revision whether it affects the High Court powers of revision. Considering the same the division bench of this Court has held: “ORDER: This pertains to a revision while we have disposed of, and it is stated that on the date of its hearing and disposal, the petitioner died. The question of the death of the petitioner does not in any way make our judgment invalid for the reason that it is a revision under S. 115, C.P.C. in which the High Court can even suo motu call for the reconsideration and dispose of it after examining them and satisfying itself that the lower Court’s order does not suffer from any infirmity specified by Section 115. We do not think that the deal of a party affects the High Court’s power revision and hence the validity of the judgment cannot be questioned” Considering the said judgments and this Court held that as the matter already been coming up for hearing today, as such the necessity of bringing of LRs of the respondent No.1 does not arise and if at all the petitioner or plaintiff intends he may move an application before the trial Court and may take appropriate steps before the trial Court as per law. 10. Coming to the aspect of the present application, admittedly as on the date, when the application under Order 38 Rule 5 was filed and being disposed of. The respondent No.2/defendant was only a proposed respondent, though an application under Order I Rule 10 was filed to implead them. As on the said date he was only a proposed party and even otherwise the said I.A. was rejected by the learned trial Court Judge subsequently after passing of the order 38 Rule 5 was brought on record vide orders passed in revision as on the said date, as already the attachment application was allowed and it is passed against a party who is not a party to the proceedings and he being only a third party. 11. As on the date as the petitioner being the third party for the application under Order 38 Rule 5. This Court is of the opinion that the order passed by the learned Judge needs interference for the aforesaid reasons and the same deserves to be set aside. 12. In the result the revision petition is allowed setting aside the orders passed in I.A.No.367 of 2018 in O.S.No.187 of 2014. This Court is of the opinion that the order passed by the learned Judge needs interference for the aforesaid reasons and the same deserves to be set aside. 12. In the result the revision petition is allowed setting aside the orders passed in I.A.No.367 of 2018 in O.S.No.187 of 2014. Further, The contention of the petitioner/plaintiff that he being impleaded subsequently after filing of the present CRP, it is for the petitioner to seek appropriate remedies if any available as per law, reserving his rights to seek appropriate remedies available under law.