High Court · 2025

...PETITIONER'RESPONDENTNO'2'PROPOSEDDEFENDANTNO'2 o*',, Va n kav a I a G a n d h i'-s i" ;'^1tS 5 3 T3fr l' A1'$ €p,[[-t:^t:: I;ll ; I^* * R/o' Sha z'-i:lf i,XS-3liBtii3,Fi?Uilll3l?[ng9|al+'i'g:'-fiH'flT'3H11?"' District' No'I "'RESP.NDENT'DEFENDANT lA NO: 1 OF 2019 in the affidavit rireJ in support of the ;"liii"';, ihe Hig!'c"utr may be pleased to PetitionunderSectionl5lCPcpraying.th?l.llthecircumstancesstated susoend the operalion of'the order p.#; ilr'I' r'rt]aoz #zora in os No' 187 ot 2o14, ot.tz_oq_)bi'E-; ihrrr" oi?riJ"vir'niii. District Judse at Khammam' lA NO: 1 OF 2021 petition.under section 1s1 cpc praying th?l.ll-the circumstances stated in Hign co"t may be pleased To iolg in cnp No' 6sa ot 2019 'i'oi the affidavit fited in support of !ng_;"titi;;,'in" extent the interim ordeis passed. in Ii''iio. i"iJ-oa-o 7 -2019 until further orders ,;<."S* Counsel for the petitioner: COUNSEI fOr thE RESPONdENT Counset for the Respondent SRt. C V V PRASAD NO.1: SR, G RAVI CHANDRA SEKHAR NO.2: NONE APPEARED The Court made the following: ORDER &_ fr, (ot THEHoN,BLEsRIJUSTICENARSINGRAoNAI{DIKoNDA ORDER: This civil Revision Petition is filed under Article 227 0f theConstitutionoflndiaagainsttheorderpassedin I.A.No.36 7 0f 20LB in o.S.N o.L87 0f 2014 0n the file of vII Additional District Judge, Khammam, wherein the respondent No.1 herein/plaintiff therein filed an application I.A.No'367 of 20L8 under order 38 Rule 5 read with section 151 0f CPC for attachment of Suit schedule Property before judgment which was acquired from Respondent/Defendant No.1 by way of gift deed in favour of Revision Petitioner'

2. For the sake of convenience, the parties hereinafter will be referred. to as they are arrayed in the trial Court as petitioner/ plaintiff or re spondent/ defendant.

3. The brief facts of the case a.re that the plaintiff i.e. Respondent No.1 herein filed a suillpTecovery of sum of Rs. 15, L9,559 / - No. l/defendant No. 1 . During the pendency of the suit, an against the respondent initially AS application was also filed by the respondent under Order 38 Rule 5 of the CPC seeking attachment of the said properties. 2 subsequently, during the pendency of the suit, i.t is brought to the knowredge of the respondent/praintiff that ,n. .;; suit Schedule property was transferred in the name of the defendant No.2 who was proposed respondent No.2 herein, As such the petitioner has withdrawn the said application and fiIed present I.A.No.367 0f 2018 seeking attactrment of the petifion schedule property which was said to, have been transferred in the name of the respondent No.2.

4. The respondent/proposed was contested by defendant No.2 contending that the respondent No.2 is a third party and the att:rchment of property of the proposed defendant seeking attachment of petitioners schedule property against the proposed defendants is not maintainabre and he further admitted that the respondent herein is the own brother of defendant. No.l and the other parties are the joint purchasers of the propertSr through a registered document in the ye_ar .2O7Cl and t]:e respondent No. l/defendant No. t has Te,;r- -rrdivi<ied share only in the said purchased la,d and that out of love and. affection tlte same was transferred by way of gift deect in favour of the proposed respondents and it is contended that as on the I I 4 ,) 3 date of passing of the order, the respondent No.l/defendant No.1 is not the owner of the petitioner schedule property and as such attachment order cannot be maintainable as per law against the respondent.

5. It is further contended that Section 128 ofT.P. Act is not applicable to the present petition as the main suit is pending and respondent No.l has been contesting the suit, and that the present petition to attach the petition schedule property against the respond.ent No.2, who is still not a party to the suit proceedings, is not maintainable and prayed to dismiss the petition. so also, the respondent No.l/defendant No.1 liled a counter on similar lines and prayed to dismiss the petition. 6' The learned Judge on r2.o4.201g, considering the third party affidavit fired and in view of the averments, that the subject grft was executed by D I in favour of his own brother/D2 during the pendency or tsg$.t in respect of the petition ichedule property, upon which attachment was already ordered against D r, as such there was an ad_interim direction given to the proposed party/D2 notto alienate the petition schedure property until further orders, no doubt the , 4 present order which on the face of it was directing the respondent/defendant No.2 not to alienate the petition schedule propert5r. 7 . It is the contention of the learned counsel for the revision petitioner as he being a third party, the question of attachment of proper$r under Order 38 Rule 5 cannot be made. In that case he is not liable to pay any amounts to the plaintiff. Admittedly, as on the said date of order of application the revision petitioner was a proposed party as application for impleading the petition also pending' Though the implead petition was dismissed against which zr CRP was filed and the said I'A' for impleading was dismissed against which the CRP No'3o7 2 of 2023 was filed and the sarne was allowed by this Court' As of now the revision petitioner is one of the PartY to the suit' .-lli":n"

8. The other contention which is raised by the learned date of the counser for the petitioner is that' * has nothing to do attachment as he being a third p"ty "Jn" with the said tand transaction as property canrtot be attached on several grounds which is raised by the learned ct>unsel for the revision petitioner is that as per Order 38 I 5 a notice ^Rule / 5 to show cause has to be issued prior to order of any attachment. It is also the griev€rnce of the petitioner that even the order 38 Rule 5 is not complied with by the learned Judge b.efore passing any orders of attachments and he also relied upon the judgement of this Court in the High Court of Judicature of Andhra Pradesh at Hyderabad cited in 1999 @l ALT 65 in Para 7 and 8 is as below: "7. T}re counsel for the first respondent herein was not able to justify and support the impugned orders. This court is of the considered view that the attachment under order 38 Rule s c.p.c- cannot be ordered against the third party. The attachment before judgment has to be ordered against the defendant only to certain conditions being satisfied. There is no procedure prescribed in impleading the additional parties in both the I'As'' w.hen they were not addred as parties in the suit." '8'The money in the hands of third pafty also cannot be attached as a garnishee gdebtor,s deb&iftnr."" a decree is passed in the suit' Such money can only be attached in execution proceedings and not in pendency of the suit. Therefore' this court holds that both t,..e orders in the I'As'' are totalry,Iegal and uncalred for. This court is of 6 I the considered view that the learned Judge has not followed the simple legal principles. Hence, both the orders passed in the I.As., are set aside"-

9. Further as it is brought to the notice of this Court that respondent No.1 died during the pendency of the revision petition, as when a question arose that whether legal heirs of respondent No 1 are necessary to be brought on record as the revision is pending. The learned counsel for the revision petitionerhasContend'edthatunderthisrevisionasitdoesnot affectthepoweroftheCourttoentertaintherevisionassuch nolegalheirsneedtobebroughtonrecordarrdhealsofurther reliedupontheJudgementofthisCourtinAlR1966AP3B4' whereinaquestionwasraisedbeforethedivisionbenchofthis Courtwhetherdeathofthepartyduringpendingrevision whether it affects the High Court- powers of revision' Consid'eringtheSamethedivisionbenchofthisCourthas held: "ORDER: This pertains to a revision wtrleoreSive d'isposed of' and it is stat'ed that on the date of its hearing and disposal' the petitioner died' The question of the death of the petitioner does not in any way make our judgment invalid for the reason that it is a revision under s' 115' c'Pcl in which the High t / t :\ 7 Court can even suo mofit call for the reconsideration and dispose of it after examining them and satisffing itself that the lower Court's order does not suffer from any infirmity specified by Section 115. We do not think that the deal of a party allects . the High Court's power revision and hence the validity of the judgment cannot be questioned' considering the said judgments and this court held that as the matter already been coming up for hearing today, as such the necessity of bringing of LRs of the respondent No.I does not arise and if at all the petitioner or plaintiff intends he may move an apprication before the triar court and may take appropriate steps before the trial court as per raw. ro' coming to the aspect of the present apprication, admittedly as on the date, when the application under order 3g Rure 5 was fired and being disposed of. The respondent No'2/defendant was onry a proposed respondent, though an application under order I Rure 10 was fired to impread them. As on the said date he was othenvise the said r.A. *""."r"::;;?H.;:""; Judge subsequentry after passing of the order 3g Rure 5 was brought on record vide orders passed in revision as on the said date, as already the attachment apprication was allowed and it \ \ 8 -l is passed against a party who is not a party to the proceedings and he being only a third party.

11. As on the date as the petitioner being the third party for the application under order 38 Rule 5. This court is of the opinion that the order passed by the learned Judge needs interference for the aforesaid reasons and the sarne deserves to be set aside.

12. In the result the revision petition is allowed setting aside the orders passed in I.A.No.367 of 2018 in O.s-No-187 of 20L4. Further, The contention of the petitioner/plaintiff that hebeingimpleadedsubsequentlyafterfilingofthepresent CRP,itisforthepetitionertoseekappropriateremediesifany available as per Iaw, reserving his rights to seek appropriate remedies available under law' SDT. P.C. SULEKHA DEVI ASSISTA.NT REGISTRAR /TRUE COPY/ 4 SECTION OFFICER To, The Spl, Sessions Judge for Trial of cases under s-9q glo STs' (PoA) Act- l,il-Vi n&1-ql'lVi +*Ai ^*'.'*", fffit? strict 3ffi 33 B 351 o"rinVi cHXirDRAstftiid;'n-oi6cate roPucl Two CD CoPies I

2. 3. 4. N. il.: ,. -**,1. r,,.;"; l' I - 'i" :'i '1" HIGH COURT DATED :14t1Ot2O2S ) / , 'ai.r"I{*t* " HES 1 () iaI[[?ffi *- ORDER, CRP.No.6g4 of 201g ALLOWING THE CIVIL REVISION TION b \t