THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.2050 OF 2004 DATED: 21-02-2011. Between Kamalesh P.Rupani … Appellant-Claim Petitioner And 1.M/s Margadarsi Chit Fund Ltd., rep. by its Principal Officer, Hyderabad and others …Respondents-D.Hr. and J.Drs. THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO.2050 OF 2004 JUDGMENT: This appeal is directed against the order, dated 27-04-2004, in E.A.No.300 of 2002 in E.P.No.71 of 1999 in O.S.No.1415 of 1992, on the file of the V Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby the application filed under Order XXI Rule 58 CPC to raise the attachment, was dismissed. 2. 1st respondent herein filed the suit for recovery of money and obtained decree and in pursuance of the decree, the properties belonging to the appellant herein were attached. It is stated by the appellant herein that in spite of execution warrant being issued against the properties of J.Dr.No.2, the properties of the appellant herein were attached. He is not a party to the suit and the decree is not executable against him or his property, but bailiff attached the properties from his house in spite of the fact that they do not belong to J.Dr.No.2. Hence, he prays to raise the attachment. 3. The respondent filed counter stating that the property attached under the decree belongs to J.Dr.No.2 and the appellant herein did not make any claim when the bailiff of the court went and attached the said property, but has come up with the present application only to help the J.Dr.No.2 to get his property released from the Court. Hence, he prays to dismiss the application. 4. The appellant himself was examined as P.W.1 and got marked Exs.A1 to A5. On behalf of the respondents, R.W.1 was examined, but no documents were marked. 5. The trial Court after considering the evidence on record, came to the conclusion that the claim petitioner failed to establish that the attached properties belonging to him and accordingly, dismissed the application. Aggrieved thereby, this appeal has been preferred. 6. Heard both the counsel. 7. Learned counsel appearing for the appellant herein contended that in view of the fact that the appellant is residing in the flat, the presumption that can be drawn is, he is the owner of the movables, which were attached in Execution Proceedings, that non production of the bills under which the movables have been produced cannot be a ground to dismiss the claim of the appellant and hence, he prays to set aside the impugned order. 8. Under Order XXI Rule 58 CPC, when a claim petition is filed, the burden is on the claim petitioner to establish that the property under attachment belonging to him. The properties attached in the Execution Proceedings are Television, fan and sofa set etc., As seen from the evidence, admittedly, father of the appellant was present when the bailiff went to the premises in question to attach the property in the year 1999. If really, the appellant is the owner of the movables, certainly, he would be having knowledge about the attachment as his father was present at the time of attachment. He did not file any petition to raise the attachment after coming to know about the attachment by the bailiff within a reasonable period of time. After lapse of three years, when the property is sought to be sold, the present application appears to have been filed contending that he is the owner of the property. No explanation was offered by the appellant as to why he has not filed any application to raise the attachment when the property was attached three years prior to the date of application. On the other hand, the evidence of R.W.1 would go to show that both the appellant and his father were present and they have not objected for attaching the property in pursuance of the decree. That evidence remained unchallenged. Furthermore, appellant who was examined as P.W.1 has categorically sated that his father was present. In such a case, if really, the movables attached were belonging to him, certainly father of the appellant would have objected and he would have noted the same in the report drafted by the bailiff. So in the earliest opportunity, father of the appellant has not raised any objection for attaching the movables. Furthermore, the appellant has not produced any documentary evidence to show that these articles were purchased by him. Therefore, in the absence of any evidence, the trial Court rightly dismissed the application and absolutely, there are no grounds to interfere with the same. 9. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. -------------------- K.C.BHANU, J DATED: 21-02-2011 Hsd