B. Keshavulu Naidu vs L. Bhaskar Naidu and B. Krishnaiah

Immaneni Panduranga Rao, J.—This petition is filed to review the order dt: 26-3-93 passed in C.M.P.No. 5465 of 1993 on the ground that the order is vitiated by an error apparent on the face of the record.

The learned Advocate-General appearing for the review petitioner argued that the review petitioner who is the defendant in the suit has denied the execution of the promissory note on behalf of himself and as manager of the joint family; that the said promissory note was concocted at the instance of one Dr. Shyamala Devi and her husband Sri S. Krishnama Naidu, a former Additional Public Prosecutor, Chittoor; that the attachment before judgment was ordered contrary to the provisions of law on 31-12-1992; that the attachment was effected and the attached property was removed and carried away; that when once the third-party security was furnished by the revision petitioner in pursuance of the decision of this court dt: 17-3-1993 in CR.P.No. 783 of 1993 the attachment is raised and, that therefore, the subsequent order in C.M.P.No. 5465 of 1993 is illegal and is liable to be reviewed.

Relying upon a Division Bench decision of our High Court in P. Satyanarayana v. P. Somasundaram 1969 (2) APLJ 121, which held that Order 21 Rule 58 C.P.C. contemplates of a subsisting attachment at the time of the application and during the proceedings until the order releasing the property from attachment is made and that an application under Order 21 Rule 58 C.P.C. does not lie when once the sale is held, the learned Advocate-General argued that when the attachment in respect of the property seized from the possession of the petitioner has been raised, the alleged claimant has to work out his rights in a suit, but, not in a claim petition and that when once the security is furnished as ordered by this court on 17-3-93 in C.R.P.No. 783 of 1993, the attachment does not subsist and, therefore, the learned Subordinate Judge has no right or jurisdiction to entertain the claim petition.

The above contention is perfectly correct if the claim petition by the 1st respondent has not been filed before the C.R.P.No. 783 of 1993 was disposed of on 17-3-93. While disposing of CR.P.No. 783 of 1993, the learned counsel for the 2nd respondent (plaintiff) brought to my notice about the pendency of I.A.No. 18 of 1993 with regard to the same property and the. learned Subordinate Judge was directed to dispose of the same expeditiously. It follows, therefore, that I.A.No. 18 of 1993 for raising the attachment was filed during the subsistence of attachment, but, not after the attachment ceased to exist.

It is significant to note that while filing C.R.P No. 783 of 1993, the petitioner therein, who is the petitioner in this petition also, did not bring to the notice of this court about the filing of a claim petition by the 1st respondent herein. When once the claim petition is pending, the claim petitioner will have the right or interest in the property which was attached and, therefore, the claim petitioner is a person interested in the subject-matter of the suit and the C.R.P. It is only after dictating the order in the C.R.P. that the learned counsel for the plaintiff brought to my notice about the pendency of I. A.No. 18 of 1993 with regard to the same property and the learned Subordinate Judge wa9 directed to dispose of the same expeditiously. Thereafter when the claim petitioner filed C.M.P.No. 5465 of 1993 for setting aside the order passed in C.R.P.No. 783 of 1993 on the ground that the order was obtained surreptitiously behind his back without impleading him in the C.R.P. in order to safeguard the interests of the claim petitioner it was directed that the attached property, if not already released in favour of the revision petitioner, shall not be released pending disposal of LA. No. 18 of 1993 with a further direction to the learned Subordinate Judge to dispose of I. A.No. 18 of 1993 within two weeks from the date of receipt of a copy of the order.

This is not the stage to consider whether the claim of the first respondent is valid or not. In the light of the fact that a claim was put forth by 1st respondent herein during the subsistence of the attachment, this court had to safeguard the interests of the claim petitioner by directing in C.M.P.No. 5465 of 1993 that the attached property if not already released in favour of the revision petitioner shall not be released pending disposal of I.A.No. 18 of 1993. The revision petitioner who had suppressed the fact of the pendency of the claim petition cannot have any grievance when the rights of the third-party claim petitioner are sought to be protected during the pendency of the claim petition filed by him.

During the arguments of C.R.P., the learned counsel for the plaintiff raised an objection with regard to the maintainability of the C.R.P. But, inasmuch as the C.R.P. was already admitted by another learned Judge on 3-3-93, I felt that it is not necessary to go into the question whether the C.R.P. against the interlocutory order is maintainable and since the order of attachment was passed even without directing the defendant to offer security and in the light of the representation that the security was already furnished by the defendant, the learned Subordinate Judge was directed to consider the adequacy of the security and if satisfied with the security furnished by the defendant, to release the property from attachment. As I observed already, during the course of arguments in CR.P.No. 783 of 1993, it was not brought to my notice that a claim petition was pending with regard to the same property. It is only after dictating the order that the learned counsel for the plaintiff mentioned to me about the pendency of I.A.No. 18 of 1993 and requested that the learned Subordinate Judge might be directed to dispose of the same expeditiously. It is on his representation that such a direction was given in the C.R.P. In view of the pendency of the claim petition, the order passed in C.M.P.No. 5465 of 1993 to safeguard the interests of the claim petitioner during the pendency of I.A.No. 18 of 1993 cannot be said to be an error apparent on the face of the record. The submission of the learned counsel for the petitioner that when once attachment is raised, the third-party''s claims cannot be determined cannot be accepted, because,the order dt:17-3-93 in C.R.P.No. 783 of 1993 was not passed in the presence of the claim petitioner.

Order 38 Rule 8 C.P.C. lays down that where any claim preferred to property attached before judgment, such claim shall be adjudicated upon in the manner provided for adjudication of claims to property attached in execution of a decree for the payment of money. Admittedly, I.A.No. 18 of 1993 was preferred in respect of the property during the subsistence of the attachment and, therefore, a duty is cast upon the court to adjudicate upon the said claim under Order 38 Rule 8 C.P.C.

From the above discussion, I do not find any grounds to review the order dt: 26-3-93 passed in C.M.P.No. 5465 of 1993. The review C.M.P. is, therefore, dismissed. No costs.