Revision - Execution - Property - Attachment - Objection - In view of specific provision, the remedy of in case of attachment of property remedy lies in prefering an appeal over the said order

ANDHRA PRADESH HIGH COURT

Before :- Dubagunta Subrahmanyam, J.
CRP No. 4107 of 2001. D/d 31.12.2002.

Ushasri Agro Agencies (Chit funds), Khammam - Petitioner
Versus
Giridhar Auto Finance.(P) Limited, Khammam and others - Respondents

For the Petitioner :- Mr. T.Veerabhadrayya, Advocate.

Andhra Pradesh High Court

JUDGEMENT

Dubagunta Subrahmanyam, J. - This revision petition is filed under Section 115 C.P.C., against the order dated 16.7.2001 in I.A.No.466 of 1999 in I.A.No.412 of 1999 in O.S.No.45 of 1999 on the file of Senior Civil Judge at Khammam.
2. The plaintiff in the suit is the revision petitioner. It filed a suit in O.S.No.45 of 1999 on the file of Senior Civil Judge at Khammam for recovery of amount said to be payable to it by the first respondent. It filed a petition in I.A.No.412 of 1999 under Order 38 Rule 5 C.P.C., seeking attachment before judgment of a vehicle bearing No. TN 72 - 6566 on the ground that the said vehicle belonged to the second respondent herein. After the said vehicle was attached before judgment, it appears that even before a decree is passed by the trial court in the suit, the vehicle was sold in public auction and sale proceeds are lying in court deposit. The first respondent herein filed a petition in I.A.No.466 of 1999 under Order 38 Rule 8 read with Section 151 C.P.C., claiming that under hire purchase agreement, it became the owner of the attached vehicle even before the attachment and requesting the trial court to deliver possession of the vehicle attached by the court. The claim application was contested by the revision petitioner. It claimed that the vehicle belonged to the second respondent herein and the first respondent is not the owner of the said vehicle. Both parties adduced oral and documentary evidence before the trial court. On a consideration of evidence adduced by both the parties, the trial court held that the first respondent herein is the owner of the attached Bus. Inasmuch as the attached Bus was already sold, the trial court held that the first respondent herein is entitled to withdraw the sale proceeds deposited in the court. Aggrieved by the said order of the trial court, the plaintiff preferred the present revision petition.
3. In my considered opinion it is not necessary to consider and decide in the present revision petition whether the first respondent is the owner or the second respondent is the owner of the attached Bus. In my considered opinion this revision petition cannot be entertained and disposed of by this court. Order 38 Rule 7 C.P.C., deals with mode of making attachment. It lays down that the attachment shall be made in the manner provided for the attachment of the property in execution of a decree. Rule 8 of Order 38 C.P.C., deals with adjudication of the claim to property attached before judgment. It clearly lays down that where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner provided for the attachment of claims to property attached in execution of a decree for the payment of money. In view of the above provisions, it is necessary to refer to the provisions in Order 21 C.P.C., relating to adjudication of claims to or objections to attachment of property. The provision in Order 21 Rule 58 C.P.C., deals with such adjudication of claims. For the purpose of disposal of this revision petition, the provision in Order 21 Rule 58(4) C.P.C., is the relevant and important provision. It reads as follows:
    " Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree"
A reading of this important provision makes it clear that any order passed by the court in an inquiry into a claim petition shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. In view of this specific provision, the remedy of any person aggrieved by any order passed by any court in a petition adjudicating claims to or objections to attachment of property is to prefer an appeal over the said order. In the present case, the revision petitioner did not prefer any appeal over the impugned order. He filed the present revision petition under Section 115 C.P.C., against the impugned order passed by the trial court. Section 115 C.P.C., deals with powers of High Court in revision. Section 115(2) C.P.C., reads as follows:
    " The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto".
This provision expressly places a bar on the power of the High Court to entertain any revision application for reversing any decree or order against which an appeal lies to the High Court or to any court subordinate to the High Court. In my considered opinion, the High Court is not competent to exercise its power under Section 115 C.P.C., in respect of an order from which an appeal lies. This revision petition is not filed invoking the jurisdiction of this court under Article 227 of the Constitution.
4. The learned counsel for the revision petitioner was asked specifically by this court at the time of hearing of this revision petition how the revision petition is maintainable and the remedy of revision petitioner is to prefer an appeal over the impugned order before the competent court. It is his contention that Order 43 C.P.C., does not provide for any appeal against an order passed in a petition filed under Order 38 Rule 8 C.P.C., and the remedy of the party is only to file a revision petition before this court. The above contention is untenable. It is to be stated that Order 43 Rule 1 C.P.C., deals with appeals from orders. It does not cover an order passed in a claim petition under Order 21 Rule 58 C.P.C. An order adjudicating a claim petition whether instituted under Order 38 Rule 8 C.P.C., or Order 21 Rule 58 C.P.C., as per the provision in Order 21 Rule 58(4) C.P.C., is to be treated as a regular decree and it is Order 41 C.P.C., and not Order 43 C.P.C., which deals with the appeal to be filed over such an order. Therefore, the order passed in a claim petition is appealable as per the provisions under Order 41 C.P.C., and not as per the provisions in Order 43 C.P.C. The contention advanced in this behalf by the learned counsel for the revision petitioner is not tenable and sustainable in law. The above contention is liable to be rejected. It is, therefore, clear that the present revision petition is liable to be dismissed in limini.
5. In the result, the revision petition is dismissed. No costs.
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