SINGIRIKONDA SUREKHA Vs. G V SHARMA

JUDGEMENT

(1.) First respondent obtained a decree against respondents 2 to 5 for recovery of money and filed E.P.No.162 of 2000 to execute that decree and got attached the house property specified in the scheduled appended to the E.P., which was sold in Court auction on 22.04.2002 and that sale was confirmed on 24.06.2002. On 23.07.2002, i.e., about one month after the confirmation of sale, revision petitioner filed E.A.No.212 of 2002 under Order 21 Rule 58 C.P.C. to raise the attachment over the property which was sold in Court auction and the same was dismissed as belated under Proviso (a) to Order 21 Rule 58 (1) C.P.C. Hence this revision by the petitioner in E.A.No.212 of 2002.

(2.) The contention of the learned counsel for the revision petitioner is that in view of M/s MAGUNTA MINING CO. Vs. M. KONDARAMIREDDY the order under revision cannot be sustained. He contended that the Executing Court should have permitted the parties to adduce evidence and disposed the petition on merits on the basis of evidence adduced. The contention of the learned counsel for the first respondent is that M/s. MAGUNTA MINES CO. (1 supra) has no application to the facts of this case because in that case the petition was filed before the sale was held. Proviso to Rule 58 (1) of Order 21 C.P.C. reads:

(3.) As per Rule 58 (5) of Order 21 C.P.C., when a claim or objection is refused to be entertained under Proviso to Rule 58 (1), the petitioner can institute a suit to establish his right in the property attached, while Rule 58 (2) of Order 21 C.P.C. lays down that all questions, including the right, title or interest in the property arising between the parties, have to be decided by the Court dealing with the claim but not by way of a separate suit. Rule 58 (4) of Order 21 C.P.C. lays down that order passed on such claim is appealable as a decree. The position, therefore, is, if claim petition filed under Rule 58 of Order 21 C.P.C. is dismissed as per the proviso to Rule 58 (1), the claimant has a right to file a suit to establish his right in the attached property, and if the claim petition is entertained and disposed of on merits that order can be questioned only in an appeal but not by way of a separate suit. The fact that a revision, but not an appeal, is filed by the claim petitioner against the order of dismissal of his petition clearly shows that the revision petitioner is also aware that his petition was dismissed under the proviso to Rule 58 (1) of Order 21 C.P.C.