GEORGE K. Vs. A.R.T. LEASING COMPANY,

JUDGEMENT

(1.) THIS petition is filed under Article 227 of the Constitution challenging Ext.P2, order on I.A. Nos. 252 of 2010 and 253 of 2010 in O.S. Nos. 83 of 2003 and 84 of 2003 of the court of learned Sub Judge, Thiruvalla. Respondent No. 1 filed the above suits for recovery of money. Respondent No. 1 attached property belonging to respondent No. 2 in those suits. In the meantime, on the strength of equitable mortgage created in favour of respondent No. 3 it brought the property for sale before the Debt Recovery Tribunal (for short, the DRT") and accordingly the property was sold on 18.05.2007 in O.A. No. 209 of 2002. In the auction conducted by the DRT property was purchased by petitioner. On the strength of that purchase, petitioner filed I.A. Nos. 252 of 2010 and 253 of 2010 in the above mentioned suits claiming that by the sale of property in auction conducted by the DRT on 18.05.2007 attachment if any effected on the property prior to that fell to the ground, could not survive, he has acquired valid title to the property free of all attachment and hence sought for lifting the attachment. It would appear that applications were filed under Order XXXVIII Rule 9 of the Code of Civil Procedure (for short, "the Code"). Learned Sub Judge treated the applications as under Order XXXVIII, Rule 8 read with Order XXI, Rule 58 of the Code and by Ext.P2, common order dismissed those applications. The common order is under challenge in this petition under Article 227 of the Constitution.

(2.) I have heard learned counsel on both sides as to the maintainability of this Original Petition under Article 227 of the Constitution since I felt that the order passed by learned Sub Judge is under Order XXXVIII Rule 8 read with Order XXI Rule 58 of the Code and hence remedy of the aggrieved party is by way of appeal as provided under Order XXI Rule 58(4) of the Code. I stated that the applications appeared to have been preferred under Order XXXVIII Rule 9 of the Code. That provision can have no application in the nature of claim made vide I.A. Nos. 252 of 2010 and 253 of 2010 since Rule 9 of Order XXXVIII of the Code deals with removal of attachment when security is furnished or suit is dismissed. Here it is not a case where petitioner wanted the attachment to be lifted either on furnishing security or because the suit was dismissed. He makes a claim over the property on the strength of title. As I stated above, I.A. Nos. 252 of 2010 and 253 of 2010 are to be treated as under Order XXXVIII Rule 8 of the Code. If that be so remedy for the aggrieved party against Ext.P2, common order is to file appeal as provided under Order XXI Rule 58(4) of the Code. When a statutory remedy by way of appeal is available this Court is not required to interfere with the impugned order in exercise of its supervisory power under Article 227 of the Constitution.