HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CIVIL MISCELLANEOUS SECOND APPEAL No.2 OF 2008 JUDGMENT: The appeal is filed against the judgment and decree in A.S.No.26 of 2006 confirming the order in E.A.No.1040 of 2004 in E.P.No.167 of 2003 in O.S.No.61 of 1998 on the file of the Additional Senior Civil Judge, Kurnol. 2. The appellant herein has filed a suit for recovery of money against the 2nd respondent and obtained a decree. In execution of the decree, certain properties were brought to sale and the 2nd respondent filed a claim petition claiming that the attached properties belongs to her. According to her, she is the wife of the judgment-debtor and her husband has conveyed the property on 20.11.1996 under Ex.A.1 partly and another gift deed was executed under Ex.A.2 on 22.06.2002 and she constructed a house and therefore, the property belongs to her. 3. The appellant herein contended that the documents are not genuine documents and they are collusive. Evidently, the suit was filed in the year, 1998 after the execution of the 1st gift deed Ex.A.1. Therefore, it cannot be taken as a collusive one. The 2nd gift deed was evidently executed after institution of the suit and the attachment was effected on 10.06.2003. Both the Courts have found that the question of fraudulent transaction and the attempt to defeat the rights of the decree-holder cannot be decided. The lower appellate Court found that unless a separate suit is filed challenging the gift deeds seeking for cancellation of the same, in an enquiry under Order XXI Rule 58 of Civil Procedure Code (for short, ‘CPC’) no relief can be granted. Reliance is placed on a decision reported in Madhavarapu Haranadhababa V. Kalingineedi Mahalakshmamma (died) by LR (R3) and another[1]. Evidently, in that case it was an attachment under Order XXXVIII, Rule 5 CPC, which was considered by the Apex Court and relied on by the learned Judge, but however, the provisions of Order XXI Rule 58 CPC earlier lays down that all claims with regard to the attachability of the property and rights therein shall be determined in the claim petition and not by a separate suit. Therefore, in view of the above circumstances, the Court has to decide as to whether the gift deed after execution of the suit is bona fide or not. Consequently, the order of the Courts below suffers from legal infirmity as they are against the provisions of Order XXI Rule 58 CPC. 4. The learned counsel for the appellant contended that even if the 2nd gift deed is true, still the claimant being a universal donee is bound to discharge the liability of debts of her husband. This plea was not raised before the lower Court and it was not considered. 5. Therefore, in view of the above circumstances and in view of the clear provisions under Order XXI Rule 58 CPC, it is the Court dealing with the application under XXI Rule 58 CPC alone which has to decide all claims and no separate suit is maintainable. The order of the Court below is set aside and the matter is remanded to the Court below for determination of all the objections raised by the appellant herein and pass appropriate orders if necessary by giving opportunity to adduce evidence to both sides. Accordingly, appeal is allowed by setting aside the order of the lower Court and the matter is remanded to the lower Court for determination of the rights of the parties as indicated in the judgment. The lower Court is directed to dispose of the matter within four months. Each party shall bear their own costs. ________________________ N.R.L.NAGESWARA RAO,J Date:21.07.2011 INL [1] 2004(1) ALD 416