KOTHAPALLI KOTESWARA RAO Vs. MURUKONDA SUBBA RAO

JUDGEMENT

(1.) Both these appeals arise out of the judgment and decree dated 25-8-1990 in A.S.No.88 of 1986 on the file of II! Additional District Judge, Guntur, modifying the judgment and decree dated 6-6-1986 in O.S.No.1179 of 1981 on the file of IV Additional Munisif Magistrate, Guntur. 3rd respondent in the appeal before the lower appellate court is the appellant in S.A.No.534 of 1990. Appellants 2 to 5 in the appeal before the lower appellate court are the appellants in S.A.No.94 of 1993.

(2.) Necessary facts briefly for the disposal of these two appeals are as follows: The appellants in S.A.No.94 of 1993 and another person by name M. Subba Rao filed a civil suit in O.S.No.1179 of 1981 on the file of IV Additional Munsif Magistrate, Guntur, against the decree holder - first defendant and judgment debtor - second defendant requesting the trial court to set aside the order dated 20-3-1981 passed in E.A.No.904 of 1979 in E.P.No.677 of 1973 in O.S.No.863 of 1972 and to declare that the plaint schedule property is not liable to be attached and proceeded against in execution of the decree in O.S.No.863 of 1972 on the file of the said court and for costs of the suit. For the disposal of these appeals, the averments in the plaint as well as the averments in the written statements need not be stated. It is sufficient to notice that the suit was filed to set aside an order passed by the Executing Court in a claim petition filed under the provisions contained in Order XXI Rule 58 C.P.C. The appellant in S.A.No.534 of 1990 is not a party to the said suit. After contest on merits, the trial court dismissed the suit with costs of the first defendant - decree holder. Aggrieved by the judgment, all the plaintiffs preferred an appeal in A.S.No.88 of 1986 on the file of III Additional District Judge, Guntur. During the pendency of the said appeal, the court auction purchaser, namely, the appellant in S.A.No.534 of 1990 got hunself impleaded as the third respondent in A.S.No.88 of 1986. After hearing both the parties, by its judgment dated 25-8-1990 the lower appellate court modified the judgment and decree of the trial court. The lower appellate court raised the attachment regarding the share of the first plaintiff and it held that the attachment of the property relating to the shares of the other plaintiffs concerned is valid. The lower appellate court decreed the suit in part as mentioned supra. Aggrieved by the judgment, the parties concerned, as stated supra, preferred the present two appeals.

(3.) The substantial question of law that arises for consideration in the present appeals is whether the suit filed to set aside an order passed in a petition filed under Order XXI Rule 5 C.P.C., is maintainable and the only remedy of the aggrieved parties is to prefer an appeal against the order in E.A.No.904of 1979?