IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.3816 OF 2004 Between: M/s. Sai Krishna Chit Fund, Rep. by its Foreman, Parmesh Kumar Gupta, S/o. Late C.P. Gupta, Aged 45 Years, Business, Office at 4-5- 524, Sultan Bazar, Hyderabad. - - - Appellant/R-1. AND Vasudev and three others. - - - Respondents. This Court made the following : THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.3816 OF 2004 JUDGMENT: This Civil Miscellaneous Appeal is filed under Order XXI Rule 58 (1) read with Section 151 of C.P.C. seeking to set aside order passed in E.A. No.156 of 2003 in E.P. No.36 of 2003 on the file of the Court of III Senior Civil Judge, City Civil Court, Secunderabad. 2. The appellant is the respondent No.1 and the first respondent is the claim petitioner and the respondents Nos.2 to 4 are the respondents 2 to 4 in the claim application. 3. For the sake of convenience, the parties hereinafter will be referred as they are arrayed in the claim application. 4. It is pleaded in the petition as follows : The claim petitioner entered into an agreement of sale for a sum of Rs.4,40,000/- and paid the entire amount in respect of the schedule property belonging to the third respondent and accordingly the same was reduced into writing on 14-06-2000. The third respondent executed a receipt to that effect and also assured that after clearing house loan she would execute a regular registered sale deed in favour of the claim petitioner. On 10-03-2001, the Andhra Bank, Khairatabad Branch, issued a letter to the claim petitioner informing that the schedule property was mortgaged with the bank and it should not be alienated. Further, the claim petitioner made all efforts to get registered sale deed for the property through the third respondent observing necessary formalities, but the third respondent failed to perform her part of contract. Further, subsequent to the agreement of sale, the first respondent-decree holder in O.S. No. 725 of 2001 on the file of V Senior Civil Judge, City Civil Court, Hyderabad, got the property attached and because it happened to be subsequent to the agreement of sale, the same is not binding. 5. The first respondent filed its counter and contested the matter, whereas, the remaining respondents did not contest the matter. The claim of the first respondent is that the agreement of sale claimed by the claim petitioner is a sham and nominal document and was created for the purpose of the case. Further, the attachment of the property was made as per law and ultimately prayed to dismiss the petition. 6. For the claim petitioner, he got himself examined as PW.1 and got marked Exs.A-1 to A-19. Further, on behalf of the first respondent, he got himself examined as RW.1 and no documents were marked. Taking into consideration Exs.A-1 to A-19, in particular Ex.A-10, the letter addressed by the said bank with regards to the mortgage and also relying upon certain decisions, the lower Court upheld the claim of the claim petitioner observing that the agreement of sale happened to be true and the attachment of the property subsequently made in the suit would not be tenable. Therefore, aggrieved by the same the present Appeal has been preferred. 7. It is the contention of learned counsel for the first respondent that first three pages of the agreement of sale do not contain any signature of the third respondent and Exs.A-2 to A-4 also do not contain her signature and absolutely there is no basis to say that the agreement of sale happened to be true and accordingly the claim petitioner has been in possession and enjoyment of the property and in Ex.A-10 also there is no mention about the agreement of sale, which circumstances therefore prove that the agreement of sale is only a sham and nominal document and it was not acted upon and it was created for the purpose of defeating the rights of the first respondent under the suit decree. 8. On the other hand, learned counsel for the claim petitioner relying upon a decision in PALLAMREDDY MASTHAN REDDY AND OTHERS v. NELLORE FINANCE CORPORATION AND OTHERS[1] has claimed that the C.M.A. is not maintainable and regular appeal was to be filed and the contents of Ex.A-1 agreement of sale, clearly constitute a true agreement of sale and further the documents marked coupled with Ex.A-1 and letter significantly addressed to the claim petitioner by Andhra Bank which emphasizes that by 10-03-2001 itself the agreement of sale was in existence, uphold the claim of the claim petitioner and the lower Court considered the matter properly and arrived at correct conclusions and there are no grounds to interfere with the order of the same Court. 9. In order to dispose of the Appeal, the following points are to be examined : 1) Whether filing of the Civil Miscellaneous Appeal is tenable? 2) Whether sufficient evidence was adduced with regard to genuineness of Ex.A-1? 3) Whether the attachment of the property in the said Court made subsequent to the agreement of sale is not binding upon the claim petitioner? 4) Whether the lower Court considered the matter properly and arrived at correct conclusions? The points 2 to 4 are subject to the findings under the Point No.1. 10. Point No.1: Considering various aspects, Full Bench of this Court observed in PALLAMREDDY MASTHAN REDDY’S case (1 supra), while considering the scope of Order XXI Rule 58, observed as under : “Thus, it is to be seen that under the old Rules, the scope of investigation into a claim petition was limited to the question of possession of the attached property. In such summary enquiry, questions relating to title could not be canvassed. However, the questions of title to the attached property could be agitated by way of a separate suit that may be filed by the unsuccessful party - - be it third party claimant or decree-holder. Though the old Rule 63 does not say in so many terms that the title to the property could also be canvassed in a suit arising out of a claim order, it is now well settled that the questions of title as well as possession will have to be gone into in such suit. Vide A. Vittal v. Ramakistaiah, AIR 1969 AP 167. The position now is that the Court is empowered to adjudicate upon the claim in a comprehensive manner covering the questions relating to right, title or interest over the property attached. The circuitous procedure of enquiry into possession in the first instance and then relegating the parties to a suit for establishing the right or title over the property is now dispensed with. The claim petition filed under Rule 58 could now be dealt with just as a suit in which questions of title and possession could be gone into. Another significant change made is that the order made in the claim petition shall be treated as a decree, against which an appeal lies. The scope of enquiry under Order XXI Rule 58 has been amplified so as to cover the questions of right and title to the property. Instead of driving the parties to a separate suit, the amendment provides for the adjudication of the claim on all aspects including the right, title and interest in and over the property. The necessary concomitant of this change is that a claim petition is decided virtually as if it is a suit for title and possession. When there is such comprehensive adjudication under the amended Rule 58, the filing of another suit is, in the very nature of things, superfluous and the suit is therefore necessarily excluded.” 11. The same observation holds good here also. Therefore filing of the Civil Miscellaneous Appeal before the High Court avoiding to approach the concerned District Court paying necessary Court fees, filing appeal suit is not tenable and accordingly, the Civil Miscellaneous Appeal is to be dismissed. In the result, the Civil Miscellaneous Appeal is dismissed and the first respondent has to approach the Appellate Court subject to relevant law. __________________________ G. KRISHNA MOHAN REDDY, J February, 04, 2011. Dsh/Da. [1] AIR 1993 AP 297