1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION Nos.1291 and 1292 of 2011 and MISCELLANEOUS PETITION Nos.1,1,2 and 2 of 2011 1.Gandhi .. Petitioner in C.R.P(PD)(MD)No.1291 of 2011 2.K.Thirumalaivadivu .. Petitioner in C.R.P(PD)(MD)No.1292 of 2011 Vs. 1.S.Rajasekaran 2.S.Baskaran .. Respondents in both C.R.Ps. Civil Revision Petitions have been filed under Article 227 of the Constitution of India against the fair and decretal orders dated 25.01.2011 passed in Interlocutory Application Nos.380 and 381 of 2010 in Original Suit Nos.46 and 47 of 2010 respectively by the Principal District Court, Virudhunagar District at Srivilliputtur. For Petitioner in both C.R.Ps. : Mr.N.Tamilmani For Respondent No.1 in both C.R.Ps. : Mr.S.Subbiah For Respondent No.2 in both CRPs : Mr.R.Devaraj for M/s.Kiruba Vijay Ananth COMMON ORDER These Civil Revision Petitions have been preferred against the orders passed in Interlocutory Application Nos.380 and 381 of 2010 in Original Suit No.46 and 47 of 2010 by the Principal District Court, Virudhunagar at Srivilliputhur. 2. The revision petitioner herein in each Civil Revision Petition as plaintiff has instituted Original Suit Nos.46 and 47 of 2010 on the file of the Court below praying to pass a money decree respectively, wherein the first respondent herein has been shown as sole defendant. During pendency of the same, in Original Suit No.46 of 2010, Interlocutory Application No.125 of 2010 has been filed under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 and likewise in Original Suit No.47 of 2010, a similar petition has been filed in Interlocutory Application No.126 of 2010. The Court below has passed orders of attachment in both the suits and in order to raise the same, the second respondent herein in each Civil Revision Petition has filed Interlocutory Application Nos.380 and 381 of 2010 under Order XXXVIII, Rule 8 of the Code of Civil Procedure, 1908. The Court below has allowed the same. Against the orders passed by the Court below, these Civil Revision Petitions have been preferred by the plaintiff as revision petitioner. 3. The main objection raised on the side of the contesting respondents is that the petitions in question have been filed under https://hcservices.ecourts.gov.in/hcservices/ 2 Order XXXVIII, Rule 8 of the Code of Civil Procedure, 1908 and the same should be adjudicated as if a claim petition filed in an Execution Petition and since the present petitions have been allowed, the only remedy open to the plaintiffs in Original Suit Nos.46 and 47 of 2010 is to file Civil Miscellaneous Appeal. Under the said circumstances, these Civil Revision Petitions are not legally maintainable. 4. For considering the submissions made on the side of the contesting respondents, the Court has to look into the provisions of Order XXXVIII, Rule 8 and also the provisions of Order XXI, Rule 58 of the Code of Civil Procedure, 1908. 5. Order XXXVIII, Rule 8 reads as follows: "Adjudication of property attached before judgment.- Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property attached in execution of a decree for the payment of money". 6. From the provisions referred to supra, it is made clear that if a petition is filed under Order XXXVIII, Rule 8 of the said Code, the same should adjudicated as a claim petition filed in an Execution Petition. Order XXI, Rule 58 of the Code of Civil Procedure, 1908 deals with adjudication of claims to, or objection to attachment of property. Order XXI, Rule 58(4) 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". 7. Therefore it is quite clear that the application filed under Order XXXVIII, Rule 8, should be adjudicated as if a claim petition has been made under Order XXI, Rule 58 and if any order is passed thereon, only regular appeal would lie as per provisions of Order XXI, Rule 58(4) of the said Code. Therefore it is quite clear that the objection raised on the side of the respondents is really having acceptable force. 8. Since the orders passed in Interlocutory Application Nos.380 and 381 of 2010 in Original Suit Nos.46 and 47 of 2010 by the Court below have been adjudicated by way of filing these Civil Revision Petitions and since these Civil Revision Petitions are not legally maintainable and the only remedy is to file regular appeal and since the orders in question have been passed by the Principal District Court, Virudhunagar District at Srivilliputhur, this Court is of the view to direct the Registry to convert these Civil Revision Petitions as Civil Miscellaneous Appeals. With the above observations, these Civil Revision Petitions are liable to be disposed of. https://hcservices.ecourts.gov.in/hcservices/ 3 9. In fine, these Civil Revision Petitions are disposed of on the basis of the observations made earlier and the Registry is directed to convert Civil Revision Petition Nos.1291 and 1292 of 2011 as Civil Miscellaneous Appeals subject to period of limitation. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To The Principal District Court, Virudhunagar District at Srivilliputtur. +1cc to Mr.P.Natarajan, Advocate, Sr.No.44127 COMMON ORDER MADE IN C.R.P(PD)(MD)Nos.1291 and 1292 of 2011 and M.P(MD)Nos.1,1,2 and 2 of 2011 smn SMA/26/12/2011/3C/3P https://hcservices.ecourts.gov.in/hcservices/