YADA LAXMI Vs. SONA FINANCE CORPORATION

JUDGEMENT

(1.) This revision petition is directed against the order dated 20-03-2006 in I.A.No.110 of 2002 in I.A.No.54 of 2000 in O.S.No.6 of 2000 on the file of the Senior Civil Judge, Siricilla.

(2.) The suit was filed by the first respondent herein against respondents 2 and 3 herein for recovery of a sum of Rs.1,50,000/-. Pending the above suit, the first respondent-plaintiff filed I.A.No.54 of 2000 under Order 38 Rule 5 of the Code of Civil Procedure seeking attachment before judgment of house bearing No.7-1-105 at Siricilla and the Court below ordered attachment as prayed for. While so, the revision petitioner, who is a third party to the proceedings, filed I.A.No.110 of 2000 under Order 38 Rule 8 of the Code of Civil Procedure to raise the attachment of the property before judgment effected on 29-04-2003 in I.A.No.54 of 2000. She pleaded ownership to the house bearing No.7-1-105 claiming that she purchased the same from one Mittapalli Venkataiah and others under a registered sale deed dated 25-01-1979 out of the income from her stridhana property. It was also pleaded that necessary mutations were effected in the municipal records and that respondents 2 and 3 herein i.e. defendants in the suit have no right in respect of the said house. The said application was contested by the first respondent-plaintiff contending that the claim petitioner (revision petitioner) had neither any stridhana property nor any independent income to purchase the house bearing No.7-1-105 as claimed by her. Before the Court below, the claim petitioner (revision petitioner) got herself examined as P.W.1 and she also examined another witness as P.W.2. On behalf of the first respondent-plaintiff, two witnesses were examined. Apart from that one Yada Jagannatham was examined as Court witness as C.W.1 at the instance of the plaintiff. Exs.P.1 and P.2 documents were marked on behalf of the claim petitioner and on behalf of the first respondent-plaintiff, Exs.R.1 to R.10 documents were marked. The Court below, on appreciation of the evidence adduced by both the parties, recorded a finding that the house in question was purchased from and out of the income of the joint family of C.W.1 and held that the revision petitioner was only a benamidar. Accordingly I.A.No.110 of 2002 was dismissed by order dated 20-03-2004. Aggrieved by the same, this revision petition is filed by the claim petitioner under Article 227 of the Constitution of India. I have heard the learned counsel for both the parties and perused the material on record.

(3.) The learned counsel for the first respondent-plaintiff, at the outset, raised a preliminary objection as to the maintainability of the revision petition contending that against the order impugned, only a regular appeal lies since it is a decree as defined under Section 2(2) of the Code of Civil Procedure. On the other hand, the learned counsel for the revision petitioner (claim petitioner) contended that the order impugned being an interlocutory order pending the suit, it cannot be treated as a decree. It is to be noted that though the prayer in I.A.No.110 of 2002 was to raise the attachment effected under Order 38 Rule 5 of the Code of Civil Procedure, virtually, it was a claim preferred by a third party to the suit proceedings. Order 38 Rule 8 of the Code of Civil Procedure provides for adjudication of such claim to property attached before judgment. Rule 8 of Order 38 of the Code of Civil Procedure reads as under: