T MUNIRATNAM DIED Vs. T ASHOK

JUDGEMENT

(1.) First respondent filed O.S. No.903 of 1998 for recovery of money and got attached before judgment some property belonging to the second respondent in LA. No.14141 of 1998. That attachment before judgment was made absolute on 18-12-1998. Subsequent thereto the suit was decreed. In execution of that decree, first respondent filed E.P. No.238 of 1999 from sale of the property got attachment by him before judgment in LA. No.14141 of 1998. Just before the date of sale appellant filed the E.A. under appeal, under Order 21, Rule 58 C.P.C. with a prayer to raise the attachment. The petition was dismissed in limine under Rule 58(1)(b) of Order 21 CPC by the order under appeal.

(2.) During the pendency of the appeal sole appellant died and so his legal representatives were brought on record as appellants 2 to 4.

(3.) Learned Counsel for the appellants placing strong reliance on M Ramachandra Rao v. Papayya Sastry, 1973 (1) APLJ 243, contends that the Court below was in error in dismissing the petition in limine even without giving an opportunity to show the reasons for the delay. The learned Counsel for first respondent relying on K. Venkatarayappa v. Ellen Industries, AIR 1985 AP 261, contends that the Court below was right in dismissing the petition in limine, under proviso sub-rule (2) to Rule of Order 21 CPC and appellant cannot be said to be aggrieved, because he has a right under sub-rule (5) of Rule 58 of Order 21 CPC to file a suit and contended that in any event since sale was held, and the property was also delivered to the auction purchaser, the petition became infructuous.