GOPALAKRISHNA PILLAI Vs. SYAM KUMAR

JUDGEMENT

(1.) This appeal is against the judgment dated 16.02.2009 in O.S.No.615 of 2008 of the IInd Additional Sub Court, Thiruvananthapuram, by the appellant as an aggrieved person. The said suit in O.S.No.615 of 2008 was filed by the plaintiff against the defendant for realization of money based on a dishonoured cheque. The present appellant is not a party to the said decree and judgment, but sought to file this appeal as an aggrieved person. The claim of present appellant is that an order of attachment before judgment was passed in that suit over the property belonging to him and that he is a bonafide purchaser for consideration, by virtue of sale deed No.22 of 2008 dated 03.01.2008 of Parassala Sub Registry Office. The sale was effected prior to the institution of the said suit in O.S.No.615 of 2008. Hence, aggrieved by the attachment before judgment, the present appeal was filed as an aggrieved person against the decree and judgment passed in that suit.

(2.) Since the appellant herein is not a party to the suit or the transaction involved in it, he cannot prefer an appeal as an aggrieved person. The remedy of appellant is to exhaust Rule 58 of Order XXI CPC by filing a claim petition and not by filing an appeal of this nature as an aggrieved person. In fact, the present appellant is not at all an aggrieved person, since the decree and judgment is not binding on him except for the purpose of attachment before judgment made over the property claimed to be owned by him.

(3.) During the course of arguments, it was fairly submitted by the learned counsel for the appellant that they are intending to exhaust the remedy available under Order XXI Rule 58 CPC, but entertained a doubt as to whether it is permissible to have an adjudication of a claim petition after the disposal of the suit, and submitted that this appeal was filed as an abundant caution.