N. KIRAN BABU Vs. M. PURUSHOTHAM AND OTHERS

JUDGEMENT

(1.) The appellant is the claim petitioner having filed E.A.No.214 of 2016 in E.P.No.10 of 2013 in O.S.No.153 of 2012 on the file of the Principal Senior Civil Judge, Ranga Reddy District. He filed the application under Order 21 Rule 58 read with 47 C.P.C., to uphold the claim of the petitioner to the extent of half share in the schedule property namely Flat No.404 in 4th floor with undivided share of 30 Sq.Yds. in Sri Krishna Paradise, situated at Satyanarayanapuram, adjacent to Chaitanyapuri, Gaddi Annaram village, Saroornagar Mandal, Ranga Reddy District, and raise the attachment effected on 21.01.2014 over the half extent pursuant to Orders in E.P.No.10 of 2013.

(2.) By order, dated 28.09.2016, the learned Senior Civil Judge held that the property was attached before judgment as per orders in I.A.No.486 of 2012 and the gift-deed was executed after the attachment so as to defeat the rights of the decree holder, that the said transfer by the judgment-debtor in favour of the claim petitioner is fraudulent and also holding that the present application is filed only to drag on the execution proceedings. The Executing Court having dismissed the claim petition, the present appeal is filed.

(3.) The contention of the appellant is that the Executing Court has not disposed of the application filed under Order 21 Rule 58 C.P.C. as per the requirement, that no enquiry was held, that no opportunity was afforded, that even though the learned Judge has held that the petition is also not maintainable in view of the proviso to sub-rule (1) of Rule 58 of Order 21 C.P.C., the learned Judge has recorded findings that the said transfer of the attached property in favour of the claim petitioner by the judgment-debtor is fraudulent since it is subsequent to the attachment before judgment. He further contends that this observations of the learned Judge is erroneous since there was no attachment before the gift-deed was executed, which was on 30.10.2012 whereas the attachment was effected only on 21.01.2014.