THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1463 of 2010 JUDGMENT: The second appeal arises out of execution proceedings. Respondents 1 and 2-decree holders filed O.S.No.109 of 2001 against respondents 3 and 4- judgment debtors, for foreclosure of mortgage. A preliminary decree was passed and since respondents 3 and 4 did not comply with it, the final decree followed. Thereafter, the decree holders filed E.P.No.43 of 2004 to bring the mortgaged property to sale. The sale was conducted on 22.11.2004. The 6th respondent emerged as the highest bidder and the sale certificate was issued. When steps were being taken to secure possession of the property, the appellants herein, children of judgment debtor No.2 i.e, respondent No.4 herein, filed E.A.No.1116 of 2004 under Rule 58 of Order XXI C.P.C. with a prayer to raise the attachment. They pleaded that the suit schedule property is part of the coparcenery property and it could not have been subjected to mortgage, to their detriment. The decree holders opposed the application. They raised objection as to the maintainability of the E.A. itself, on the ground that no attachment as such was effected in the proceedings. The executing Court allowed the E.A. through order, dated 29.119.2007. Aggrieved thereby, the decree holders filed A.S.No.3 of 2008. The appeal was allowed on 26.03.2010. Hence, this second appeal. Sri T.Sreedhar, learned counsel for the appellants submits that the lower appellate Court committed error in holding that the application was not maintainable on the one hand and expressing view on merits on the other hand. He contends that in case, the application was not maintainable, it ought to have been returned, so that the proper remedy could have been availed. Alternatively, he submits that mere invocation of a wrong provision of law does not render an application not maintainable and if the facts of the case support, the correct provision can be invoked and the corresponding relief can be granted. Sri K.G.Krishna Murthy, learned Additional Advocate General appearing for the decree holders and Sri M.V.S.Suresh Kumar, learned counsel for the auction purchaser i.e., 6th respondent, on the other hand, submit that the very basis for an individual to file an application under Rule 58 of Order XXI C.P.C. is the existence of attachment and since admittedly there is no attachment in the instant case, the application was not tenable. They also subit that the possibility for invoking the correct provision of law by the Court does not exist in this case, since the parameters for determination of the applications that are to be filed at various stages of execution under the respective provisions are totally different. They also rely upon certain decided cases, touching upon the maintainability of an application under Rule 58 of Order XXI C.P.C. As observed earlier, the proceedings cover the stage of execution. E.A.No.1116 of 2004 was filed under the assumption that there existed an attachment of the mortgaged property and the appellants wanted that to be raised by pleading their right vis-à-vis the property. Since Rule 58 of Order XXI C.P.C. mandates that an application filed thereunder shall be decided as if, it is a suit, the executing Court framed a point and recorded oral and documentary evidence. On behalf of the appellants P.Ws.1 to 3 were examined and Ex.A.1, the deposition in E.P.No.280 of 2000 in O.S.No.446 of 1997 was filed. On behalf of the respondents, R.Ws.1 to 3 were examined and Exs.B.1 and B.2 were filed. The executing Court allowed the E.A. In A.S.No.3 of 2008 filed by the decree holders, the lower appellate Court framed the following points for its consideration: 1. Whether the 1st respondent, who is the father of petitioners 1 to 3, is the natural son or adopted son of 3rd respondent? 2. Whether the petitioners are entitled to claim any share in the plaint schedule property? 3. Whether the petitioners are entitled for raising attachment? Ultimately, the appeal was allowed. It hardly needs any mention or emphasis that an application under Rule 58 of Order XXI C.P.C. can be filed only for the relief of raising of attachment. The applicant therein has to establish his title vis-à-vis the property by leading oral and documentary evidence. Once the title is established, the attachment would be raised and the property would not be available to be proceeded, in the execution. The appellants proceeded on the assumption that the suit schedule property was attached and adduced evidence to establish their right. Their principal contention was that the mortgaged item forms part of the joint family properties and it could not have been subjected to mortgage to their detriment. The executing Court no doubt expressed its view point on the entitlement of the appellants herein vis-à-vis the property and so did the lower appellate Court, may be, in the process of reversing the finding of the executing Court. The fact however remains that once there did not exist the attachment of property, the very application was not maintainable and the executing Court ought to have returned it, so that the proper remedy could have been availed by the appellants. Even now such a course can be adopted. Therefore, the second appeal is dismissed upholding the order of the lower appellate Court that E.A.No.1116 of 2004 filed by the appellants herein was not maintainable. However, the findings recorded by the executing Court and the lower appellate Court on the rights of the parties vis-à-vis the property are set aside. It is left open to the appellants to work out their remedies in accordance with law. It is directed that the executing Court shall not pass any orders in E.A.Nos.952 and 953 of 2010 in E.P.No.220 of 2010 in E.P.No.43 of 2004 in O.S.No.109 of 2001 for a period of ten days. There shall be no order as to costs. __________ 13.12.2011 Note: Issue C.C. in three days. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.1463 of 2010 Date: 13.12.2011 JSU