Allowed

Bovilineni Raj Kumar, v. Dudala Veera Swamy

Telangana HC19 Sept 2013AS/707/2013

Case brief

AI extract

What is this about?

Appellant appealed against the rejection of his third-party claim petition challenging attachment of property. Court held lower court erred by rejecting claim at threshold due to missing will, violating Order 21 Rule 58 CPC which mandates adjudication on merits. Appeal allowed; claim restored for merits hearing.

What did the court decide?

Impugned order set aside; claim petition restored to lower court for adjudication on merits within two months.

Bovilineni Raj Kumar, Vs Dudala Veera Swamy — Execution and Attachment | Telangana HC (2013)

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HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR APPEAL SUIT No.707 of 2013

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JUDGMENT:

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Heard both sides.

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Since both the Learned Counsel have made submissions on the merits of the appeal itself, by this judgment, the appeal is being disposed of.

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The appellant is a third party claimant who objected to the attachment of the petition schedule property by filing an application in E.A.(SR).No.3765 of 2012 under Order 21 Rule 58 of the Code of Civil Procedure (CPC).

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The averments of the petitioner, in the said application, show that he claims to be the owner and possessor of the petition schedule property having purchased from the second respondent, and his mother, under a registered GPA –cum- possessory sale agreement dated 16.03.2009. It is also alleged that the petition schedule property originally belonged to the father of the second respondent who did, in his life-time, execute a registered will dated 11.10.1995 bequeathing the property to his wife and, later, the wife of the original owner, who is the mother of the second respondent, sold the petition schedule property to the petitioner under a registered agreement of sale dated 16.03.2009 referred to above. The petitioner, therefore, contends that, since he is the owner of the petition schedule property, it cannot be sold in execution of decree in O.S.No.433 of 2007 obtained by the first respondent against the second respondent. The attachment of the property was sought for by the decree holder against which the aforesaid claim petition was filed under Order 21 Rule 58 CPC.

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Learned Counsel for the first respondent submits that the

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suit was decreed, and the petition schedule property was attached and was being brought to sale in E.P.No.88 of 2011 and, at that stage, the present petition was filed by the appellant – petitioner. Learned Counsel further submits that the appellant - petitioner is neither a bona fide purchaser nor has any independent claim as his claim is, ultimately, only through the second respondent. He, therefore, submits that the petition filed under Order 21 Rule 58 CPC by the appellant - petitioner is not maintainable and, in any case, is frivolous and vexatious.

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The Court below, however, has passed a one sentence order rejecting the said petition on the ground that the original will was not filed.

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The point, therefore, falls for consideration in the appeal is that whether the Court below was justified in rejecting the petition without adjudicating thereon.

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The provisions of Order 21 Rule 58 CPC clearly provide that where any third party claims or objects to the attachment of the property, and where the Court is satisfied that such a claim petition or objection is not designedly or unnecessarily delayed, it shall entertain the said claim petition on merits and shall decide all questions relating to right, title and interest as if it was a suit. The adjudication of the said claim petition, therefore, has to be on par with adjudication in a suit, and the order of the said claim petition is given a force of a decree.

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Keeping in view the aforesaid provision of Order 21 Rule 58 CPC, the application filed by the appellant ought to have been examined by the Court below on its merits but, unfortunately, at the threshold, the said petition was rejected only on the ground that the original will was not filed. In my view, the impugned order rejecting the claim petition completely frustrates the object and

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purpose of providing for adjudication of such claims under Order 21 Rule 58 CPC. The order impugned, therefore, is liable to be set aside as it is contrary to Order 21 Rule 58 CPC. The Court below, therefore, ought to have kept in mind that the scheme of adjudication of objections of third parties, either under Order 21 Rule 58 CPC or under Order 21 Rules 97, 98, and 99 CPC, is similar where the Executing Court is required to adjudicate upon such claim so as to obviate necessity of such objector to file a separate suit. The multiplicity of proceedings is, therefore, avoided by the aforesaid provisions inserted in the Civil Procedure Code under the Central Act 104 of 1976. As mentioned above, the provision also provides that the Court is free to consider whether such objection or claim is designedly or unnecessarily delayed at the threshold. The present impugned order does not even fall within the said parameters nor there is any adjudication of the appellant’s objection/claim. Hence the impugned order cannot be sustained and, is liable to be set aside and is, accordingly, set aside.

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The Appeal is, therefore, allowed. E.A.(SR).No.3765 of 2012 in E.P.No.88 of 2011 in O.S.No.433 of 2007 filed by the appellant - petitioner shall stand restored and relegated to the Court of I Additional Senior Civil Judge, Kakinada. The Court below shall number the application, and the same shall be heard and disposed of, in accordance with law, in the light of the observations made above. Since the suit is of the year, 2007, and the E.P. is pending since 2011, it is just and appropriate that E.A. (SR).No.3765 of 2012 be heard and disposed of expeditiously within a period of two months from the date of receipt of a copy of this order.

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Miscellaneous petitions pending, if any, shall also stand

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disposed of. No order as to costs.

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VILAS V.AFZULPURKAR,J

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Date: 19.09.2013 usd

Bovilineni Raj Kumar, v. Dudala Veera Swamy

Case brief

What is this about?

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Bovilineni Raj Kumar, v. Dudala Veera Swamy

Case brief

What is this about?

What did the court decide?

What the court decided

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