THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.5357 OF 2010 DATED 30TH MARCH, 2011 BETWEEN Pemma Sarojamma …Petitioner And Poola Venkata Chelapathi and another …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.5357 OF 2010 ORDER: This Civil Revision Petition arises out of the order dated 28.02.2009 passed in E.A.No.302 of 2008 in E.P.No.315 of 2008 in O.S.No.1118 of 2007 on the file of the learned IV Additional Junior Civil Judge, Kadapa. The said E.A. was filed under Order XXI Rule 58 CPC. By the said order, the Executing Court dismissed the E.A. with costs holding that there was no attachment of the scheduled property in execution of the decree and therefore, the claim petition filed by the petitioner herein was not maintainable. At the outset, it may be noticed that the Executing Court was wrong in its assumption that there was no attachment of the scheduled property. Copy of the docket proceedings placed before this Court reflect that on 26.06.2008, the Executing Court while ordering notice directed attachment of the petition schedule property in the E.P. Sri R.Radha Krishna Reddy, learned counsel for the petitioner, submitted that the Executing Court erred in dismissing the claim petition on this factually incorrect impression. He therefore prayed for the order to be set aside and the matter to be remitted to the Executing Court for fresh consideration. Sri L.J.Veera Reddy, learned counsel for the first respondent, however raised an objection as to the maintainability of the Civil Revision Petition. He contended that the order passed by the Executing Court under Order XXI Rule 58 CPC is appealable under Section 96 CPC as a decree and therefore, a Civil Revision Petition under Section 115 CPC would not lie. It is relevant to note that the Civil Revision Petition was sought to be filed originally under Article 227 of the Constitution of India, but thereafter the words ‘Article 227 of the Constitution of India’ were struck off and substituted with the words ‘Section 115 of CPC’. Order XXI Rule 58 CPC reads as under: “ORDER – XXI Execution of Decrees and Orders ……… 58. Adjudication of claims to, or objections to attachment of, property:–– (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained–– (a) where, before the claim is preferred or objection is made the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub- rule (2), the Court shall, in accordance with such determination,–– (a) allow that claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person, or (d) pass such order as in the circumstances of the case it deems fit. (4) 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. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1) refuses to entertain it, the party against whom such order is made, may institute a suit to establish the right which he claims to the property in dispute; but subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.” In the present case, there was no determination of the claim petition under sub-rule (3) of Order XXI Rule 58 CPC, which would necessarily have meant that an appeal would have to be filed against such determination treating the same as a decree under sub-rule (4) of Rule 58 of Order XXI CPC. Reference in this regard may also be made to the Full Bench Judgment of this Court in GURRAM SEETHARAM REDDY v. SMT.GUNTI YASHODA[1], wherein it was affirmed that an application filed under Order XXI Rule 58 was conferred the status of a suit and the order passed therein the status of a decree thereby attracting Section 96 CPC. However, there was no determination in the case on hand under sub-rule (3) of Rule 58 of Order XXI CPC which would qualify the order of the Executing Court to aspire to the status of a decree. At the same time, the refusal by the Executing Court to entertain the claim petition was not on either of the two grounds specified in the proviso to sub- rule (1) of Rule 58 of Order XXI CPC. Sub-rule (5) of Rule 58 of Order XXI CPC makes it clear that only if the claim petition is refused to be entertained on either of the grounds stipulated in the proviso to sub- rule (1), the party aggrieved is required to institute a separate suit for establishing his/her right in the disputed property. As the dismissal of the claim petition on a mistake of fact committed by the Executing Court falls neither under clause (a) nor clause (b) of the proviso to sub- rule (1) of Rule 58 of Order XXI CPC, sub-rule (5) thereof has no application. That being so, neither would an appeal lie against the order of the Executing Court nor would the petitioner be entitled to institute a separate suit. In such circumstances, it cannot be contended that the petitioner is remediless and is not entitled to institute a Civil Revision Petition, be it under Section 115 CPC or under Article 227 of the Constitution. It may be noticed that the revision as filed presently would be maintainable under the amended proviso to Section 115 CPC as the petitioner’s success in the claim petition would have meant final disposal of the said proceeding. However, the order of the Executing Court was passed as long back as on 28.02.2009 and this revision petition was filed only on 11.10.2010 without any application for condonation of delay. It therefore cannot be entertained under Section 115 CPC as presented. The petitioner having chosen originally to file this revision petition under Article 227 of the Constitution, for some strange reason, decided to alter the same to one under Section 115 CPC. It may however be noticed that the petitioner failed to pay the requisite court fee for this revision petition to be one under Article 227 of the Constitution. Thus, the revision petition as framed is neither properly instituted under Section 115 CPC nor under Article 227 of the Constitution. When accosted with this technical aspect, Sri R.Radha Krishna Reddy, learned counsel for the petitioner, placed reliance on the Judgment of a Division Bench of this Court in JALEEL KHAN v. M.KAMALAMMA[2] wherein it was observed: “32. It is further made clear that we are only dealing with the matter regarding conversion of a petition originally filed under Section 115 of the Code into a petition under Article 227 of the Constitution of India and for reasons given above we hold that it is permissible. But, whether in the facts of this case a petition under Article 227 would be maintainable or not is a question, which will have to be decided by the Court after conversion. Any observations made should not be taken as an expression of opinion that every order passed at the interim stage by the Rent Controller is challengeable under Article 227. 33. For the foregoing reasons, we are of the considered view that in appropriate cases where the fact situation warrants, a petition filed under Section 115 of the Code can be converted into a petition under Article 227 of the Constitution of India on the principle of ex debito justitiae. The reference is answered accordingly.” In the light of the aforestated Judgment, it is clear that it would be open to this Court to convert a Civil Revision Petition filed under Section 115 CPC to one under Article 227 of the Constitution if sufficient reasons exist therefor. In the present case, the manifest error committed by the Executing Court under a mistaken impression of fact is eminently amenable to correction by this Court in exercise of its powers of superintendence. Owing to the mistake committed by the Executing Court, the petitioner can neither be made to suffer nor undergo a cumbersome process of a separate and independent suit. The Civil Revision Petition is accordingly treated as one filed under Article 227 of the Constitution, subject however to payment of requisite Court fee by the petitioner. The order dated 28.02.2009 passed by the Executing Court dismissing the claim petition on the basis of a factual error is accordingly set aside and the matter is remitted to the learned IV Additional Junior Civil Judge, Kadapa, for consideration afresh in accordance with law. The Civil Revision Petition is allowed, subject however to payment of requisite Court fee by the petitioner treating this Civil Revision Petition as one filed under Article 227 of the Constitution. A copy of this order shall be furnished to the petitioner only on payment of the deficit court fee. In the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 30TH MARCH, 2011. LVL/VGSR/PGS [1] 2004 (6) ALT 111 (FB) [2] 2001 (5) ALT 595 (DB)