K VENKATA KRISHNAREDDY Vs. K RAMANA REDDY

JUDGEMENT

(1.) This is a revision petition filed against the order rejecting the petition filed under Order 21, Rule 58 of the Code of Civil Procedure to raise the attachment. The learned counsel for the petitioners contended that the petition filed for raising the attachment is not even numbered and there is no enquiry at all whatsoever but on the simple ground that the petition is belated the lower Court dismissed it. This is contrary to the provisions of the Act and also to the principles of natural justice. When the Court has rejected the claim petition on the ground that it was designedly or unnecessarily delayed without giving an opportunity to explain it by adducing evidence it cannot be held that the delay was unexplained. Therefore the order deserves to be set aside. The learned counsel for the petitioners also in support of his contention relied on the decisions in C.R.P. No. 1295 of 1979 Dt. 19-9-79. Eswarappa vs. Krishna Reddy and M. Ramachandra Rao vs. A.P. Sastry The learned counsel for the 1st respondent on the other hand contended that the attachment was effected on 21-2-1974. The claimants purchased the property on 27-2-1975 as is evident by the order of the lower court and the claim petition is filed on 17-10-1978 after four years after the property was attached. The delay is inordinate on the face of it and therefore the petition was rightly rejected by the lower Court.

(2.) I was taken through the order of the lower Court. The lower Court on the ground that the petition was filed after .the property was put up for sale and the inordinate delay in filing the claim petition was not explained refused to entertain the claim petition and rejected it. The learned counsel for the petitioners submitted that the question of delay is beside the point and that should not come in the way of entertaining a claim petition. A Bench of this Court in Eswarappa vs. Krishna Reddy had an occasion to deal with the proposition. What is laid down in the decision is that a person who omits to prefer a claim under Order 38, Rule 8, Civil procedure Code, does not run the risk of being prevented from raising an objection under Seci 47, Civil Procedure-Code, at the stage of execution of the decree. If he wishes he can lay a claim but he would not entail the penalty contemplated under the principle laid down under Sec. 11 (4) of the Civil Procedure Code. The facts of that case are different. When the at achment before judgment was effected for five items 1 to 5 a claim petition was filed immediately for items 1,2, and 5 claiming that they are separate properties and are not liable to be that they are separate properties and are not liable to be attached and no objection was taken with regard to items 3 and 4. The trial Court allowed the objection. But the appellate Court allowed the appeal and directed that the attachement should continue. Thereafter no suit was fikd to raise the attachment within the period of one year. After the decree was passed in the execution proceedings the claimant again took the objection not only with regard to the items 1,2 and 5 but also in respect of items 3 and 4 stating that they are his separate properties and requested the court to treat the petition as a petition under Sec 47 of the Code of Civil Procedure and investigate into the matter. A learned single Judge of this Court, on the basis that no suit was filed within one year with regard to item 1,2 and 5 held that the claimant cannot request for a further adjudicate Under sec. 47 of the Code of Civil Procedure. In Letters Patent Appeal the Bench took the view that when an attachment is made under Order 38, Rule 8 of the Code of Civil Procedure the period of limitation is not one year but six years under Article 12 of the Limitation Act and the petition filed by the claimant was within six years. Even though the prayer made in the High Court to convert that petition into a suit was after a palse of six years, the petition having been filed with six years, the Court permitted such a conversion, and directed it to be enquired in on. Therefore, the question with regard to the belatedness in filing the claim petition does not arise in this decision. Therefore the authority bas no application to the facts of the present case,

(3.) The learned counsel for the petitioners next referred to the decision in M. Ramachandra Rao vs. A.P. Sastry In this case, a claim petition was filed. The attachment of the property was effected on 3-12-1965. The petition to raise the attachment was filed on 23-12 1965. In the petition for raising the attachment it was specifically stated that the claimant bad half a share in the Cinema Theatre known as Prabbat Talkies at Visakhapatnam. A money decree was obtained nd the entire theatre was attached. The said attachment was not valid and binding on the claimant so far as his share was concerned. A sale proclamation was not issued for the entire property including the claimant's share. The petitioner came to know about the attachment recently when he came to the Court in connection with other matters and hence the petition could not be filed earlier as the petitioner was not awace of the alleged proclamation till he was informed about the same in the Court, and that the sale is posted on 8-3-1972 and the petition is being filed for stay of further proceedings including the sale. This petition was returned for filing documents, if any, to show that be has got title and possession by the date of attachment, and also to give the exact date of attachment. There are three or four endorsements of returns and representations. Ultimately so far as the date of attachment is concerned the petitioner stated that the known date is 23-6-1972 and prayed that the attachment may be raised to the extent he got title and possession by the date of attachment. With regard to the documents, it was represented that they were with the High Court advocate. On this the Court passed the Order; "Rejected as it is belated one". It was observed by the High Court that from the order it does not appear that any opportunity was given to the petitioner to show cause how the petition was not designedly or unnecessarily delayed. In that it was also opened