Annamaneni Madhulika v. Yamsani Hanmandhu

HON'BLE SRI JUSTICE A.RAJASHEKER REDDY CIVIL REVISION PETITION No.3674 of 2017 ORDER:

The Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908 (for short, 'C.P.C'), is filed by the petitioner, against the order, dated 20.02.2017, of the learned II Additional District Judge, Karimnagar at Jagtial, passed in E.A.No.3 of 2014 in E.P.No.3 of 2013 in O.S.No.5 of 2011, wherein the learned II Additional District Judge, Karimnagar at Jagtial, dismissed the application filed by the petitioner under Order 21 Rule 58 read with Section 151 C.P.C.

2.

Heard learned counsel for the petitioner and the learned counsel for the respondents and perused the material available on record.

3.

The brief facts of the case are that the 1st respondent/DHR filed O.S.No.5 of 2011, on the file of the II Additional District Judge, Karimnagar at Jagtial, on 01.03.2011, against the 2nd respondent/JDR for recovery of an amount of Rs.15,00,000/- and the same was decreed vide judgment, dated 07.06.2012. Basing on the same, the first respondent/DHR filed E.P.No.3 of 2013 in O.S.No.5 of 2011 for attachment of the E.P. schedule property bearing House No.7-4-116/2, situated at Vidyanagar, Jagtial, in the claim petition and aggrieved by the said attachment, the petitioner filed E.A.No.3 of 2014 in E.P.No.3 of 2013 in O.S.No.5 of 2011 and the same was dismissed by the learned trial Judge after recording the evidence of both parties.

>>2<< Aggrieved by the same, the present civil revision petition is filed by the petitioner.

4.

Learned counsel for the petitioner submits that the revision petition is maintainable since the application is dismissed refusing to entertain the objections and it is filed under Order XXI Rule 58 C.P.C. He submits that in the impugned order, there is no determination of the rights of the parties, as such the appeal does not lie. He submits that in case if the objections are allowed, then the appeal shall lie. He submits that the Court below dismissed the application only after coming to the prima facie conclusion and it is not that the application under Order XXI Rule 58 C.P.C. is dealt with like the suit, as such no appeal lies against the same. 5.

On the other hand, learned counsel appearing for the first respondent/DHR submits that by relying on Order XXI Rule 58 Sub-Rule 4 C.P.C, if any claim or objection has been adjudicated under this Rule, appeal lies. He further submits that after evidence is recorded by the trial Court, the Executive Court passed the impugned order. Learned counsel also filed a certified copy of the decree.

6.

Learned counsel for the first respondent relied on the following decisions:

1.

Ushasri Agro Agencies (Chit Funds), Khammam Vs. Giridhar Auto Finance (P) Limited, Khammam and others1, 2.

A full Bench Judgment of this Court reported in Mr. Gurram Seetharam Reddy Vs. Gunti Yashoda And Anr.2, and 1 2003 (2) ALD 370

>>3<< 3.

A judgment of the Madras High Court reported in P. Madhavan Vs. Periyakaruppan3 7.

In the present case, it is to be seen that in E.A.No.3 of 2014, after evidence is recorded, the trial Court passed an order and decree is also framed.

Order XXI Rule 58(4) C.P.C. reads as follows: "Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."

8.

In the present case admittedly, claim is made by the petitioner and the same has been adjudicated under Order XXI Rule 58 C.P.C by recording the evidence. As such, the said order shall have the same force and subject to the same conditions as to appeal or otherwise as if it is a decree. From Order XXI Rule 58(4) C.P.C is clear that when a claim or objection is to be adjudicated upon, it should be treated as a decree. So, admittedly, an appeal lies in view of the judgment reported in Ushasri Agro Agencies (Chit Funds) (1 Supra), wherein it is held as under:

"This provision expressly places a bar on the power of the High Court to entertain any revision application for reversing any decree or order against which an appeal lies to the High Court or to any Court subordinate to the High Court.

Therefore, the order passed in a claim petition is appealable as per the provisions under Order 41 CPC, and not as per the provisions in Order 43 CPC. The contention advanced in this behalf by the learned Counsel for the revision petitioner is not tenable and sustainable in law. The above contention is liable to be rejected. It is, therefore, clear that the present revision petition is liable to be dismissed in limini." 2 C.R.P.No.5842 of 2004 3 C.R.P.NPD.(MD).No.966 of 2006

>>4<< 9.

In the judgment of the full Bench of this Court reported in Mr. Gurram Seetharam Reddy (2 Supra), it is held as under: "11.

The answer to the question framed for adjudication in this C.R.P. depends upon the interpretation, which is to be placed on sub-rule (4) of Rule 58 of Order 20 of C.P.C. Before C.P.C. was amended in the year 1976, the procedure for adjudication of claims, in relation to attachment of properties made by persons, who are not parties to the proceedings was governed by Rules 58 to 63 of Order 21. It would be sufficient, if reference is made to Rule 63. It read as under:

"Rule 63: Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but, subject to the result of such suit, if any, the order shall be conclusive."." 42.

For the foregoing reasons, we hold that;

a) Against the orders passed under Rule 58(3) and Rules 98 and 100 of Order 21 C.P.C. regular appeals under Section 96 and not miscellaneous appeals under Section 104 read with Order 43 Rule 1 C.P.C. are maintainable and that the judgment of this Court in Nookaraju's case (1 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 Articles 11(i) or 3(i) of Schedule II of Court Fees Act, as the case may be read with Section 49 of the A.P. Court Fees and Suits Valuation Act.

c) second appeal under Section C.P.C.

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 21 C.P.C."

10.

In P. Madhavan's Case (3 supra), it is held as follows: "12.

This Court in 2004(2) M.L.J.105 (cited supra) held that on a careful analysis of the relevant provisions of the definition of a decree in Section 2(2)(a) C.P.C., S.104(i) R/W Order 21 Rule 58(4) C.P.C, no regular appeal is contemplated as provided u/s 96 of C.P.C.

But a Civil Miscellaneous Appeal alone is contemplated."

>>5<< 11.

No distinction can be made for maintaining appeal against the order rejecting the claim petition or allowing the claim petition as Sub-Rule 4 is very clear. As such, the contention that appeal is not maintainable against the order dismissing the claim petition cannot hold good and the same cannot be accepted and as rightly contended by the learned counsel for the respondents, SubRule 4 of Rule 58 of Order 21 C.P.C. clearly attracts and any adjudication in this Rule 58 is treated as a decree and it will be subject to the same conditions as to appeal. Sub-Rule 5 of Rule 58 of Order 21 of C.P.C. deals with the case where the trial Court refuses to entertain the application made under Sub-Rule 1 of Rule 58 of Order 21 C.P.C. for filing of separate suit and that has no bearing on the maintainability of the revision or otherwise. 12.

In the present case, it is not a case of mere refusal. It is a case of adjudication upon merits. As such Sub-Rule 4 of Rule 58 of Order 21 C.P.C. applies. As far as contention of the learned counsel for the petitioner that it is not properly dealt with like a suit. If the order is wrong on merits, it is always open for the petitioners to agitate the same on merits in appeal. Since this Court holds that an appeal is maintainable against the impugned order and decree, the revision is not maintainable under SubSection 2 of Section 115 of the Code of Civil Procedure. In view of the above facts and circumstances and the law laid down by this Court in the decisions referred to above, I do not see any merits in the civil revision petition.

13.

Accordingly, the Civil Revision Petition is not maintainable. The Office is directed to return the original papers.

>>6<< There shall be no order as to costs. Miscellaneous petitions, if any, pending in this civil revision petition shall stand closed. ______________________________ A.RAJASHEKER REDDY, J Date: 10th October, 2017 KL

>>7<< HON'BLE SRI JUSTICE A.RAJASHEKER REDDY CIVIL REVISION PETITION No.3674 of 2017 Date: 10th October, 2017 KL