THE HON'BLE MR JUSTICE V ESWARAIAH SECOND APPEAL NO. 1307 OF 2011 DT.18.11.2011 Between: Shaik Ashidun and another appellants And Syed Mahaboob Bee and another … Respondents Counsel for the Petitioner: Sri Nimmagadda Satyanarayana Counsel for respondent No.1: Sri Raja Reddy Koneti The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH SECOND APPEAL NO. 1307 OF 2011 ORDER: This second appeal is filed questioning the judgment and decree dated 17.10.2008 in A.S. No. 324 of 2007 on the file of the Court of the I Additional District Judge, Guntur dismissing the appeal and confirming the judgment and decree dated 12.9.2007 in E.A. No. 297 of 2007 in E.P. No. 1034 of 2006 in O.S. No. 1797 of 2003 on the file of the Court of III Additional Junior Civil Judge, Guntur. The appellants are claimants, who filed a claim petition, being minors represented by their mother, under Order XXI Rule 58 CPC in E A No.297 of 2007 to adjudicate their claim in respect of the schedule property in E.P. No. 1034 of 2006 in O.S.No. 1797 of 2003. The case of the appellants/claimants is that they are sons of second respondents who has gifted the schedule property to them vide registered gift deed dated 15.1.2005 and delivered the possession. That the first respondent is concubine of second respondent and they have colluded and while making efforts to dispossess them and to sell the schedule property, the mother of the appellants filed an application in E.A. No. 297 of 2007. The mother of the claimants was examined as P.W. 1 and documents in Ex.A1 to A3 were filed on their behalf. No evidence was adduced on behalf of the respondents. However, the first respondent filed a counter denying the application averments. The trial Court on consideration of the rival contentions, framed the following issue for its consideration; “Whether the schedule property is the absolute property of the claim petitioners and the attachment effected on 3.12.2006 is not legal and is liable to be raised as prayed for? On consideration of the matter the trial Court dismissed the said application holding that the claimants are claiming their right under the gift deed dated 15.1.2005 executed during the pendency of the suit and they are bound by the order passed dated 21.3.2007 in the Execution Petition during enquiry under Order 21 Rule 54 of CPC and Section 128 of the Transfer of Property Act fastens liability on the universal donee as the whole property of the judgment debtor is gifted to minor daughters/claimants, they are liable to the extent of the properties gifted to them. It was further held that claim of the claim petitioners for raising the attachment of the schedule property is not maintainable and the same is liable for sale for discharge of the decree debt of the judgment debtor/donor of Ex.A1 gift deed. Aggrieved by the same, the claimants filed an appeal under Section 96 of the CPC in A S No. 324 of 2007 on the file of the I Additional District Judge, Guntur. The lower appellate Court on 17.10.2008 dismissed the appeal, the judgment reads as under; “This is an appeal filed under Section 96 of the Civil Procedure Code to allow the appeal by setting aside the decree and order dated 12.11.2007 of III Additional Junior Civil Judge’s Court, Guntur in E A No. 297 of 2007 in E.P. No. 1034/06 in O.S. No. 1797/03, allow the claim application by raising the attachment of the petition schedule property, grant stay of the sale of the attached property pending disposal of claim petition and for costs. Appellant called absent. Some advocate came and represents that no objection vakalath is obtained but signatures on behalf of minors are not obtained. This is an appeal against a claim petition. The execution proceedings if any would be effected. Hence appeal is dismissed.” It is thus clear that the lower appellate Court dismissed the appeal without considering the matter on merits, merely on the ground that the execution proceedings, if any, would be effected. It is not in dispute that the appellants filed their claim petition under Order 21 Rule 58 of CPC which has to be tired as if a regular suit and appeal filed questioning rejection of the claim petition is a regular appeal and the same has to be considered and disposed of on its own merits. The lower appellate Court erred in dismissing the appeal without considering the merits of the case. For the foregoing reasons, the judgment in A.S. No. 324 of 2007 dated 17.10.2007 on the file of the I Additional District Judge, Guntur is set aside and the matter is remanded back for afresh consideration and disposal on merits after giving reasonable opportunity to both the parties. If any interim order was passed during the pendency of the appeal, the same shall continue pending appeal and if no interim order is passed, it is open for the appellants/claimants to file appropriate application before the lower appellate Court seeking interim order, if so advised. Accordingly, the second appeal is allowed. No costs. _____________ V ESWARAIAH,J DATE: 18.11.2011 TVK THE HON'BLE MR JUSTICE V ESWARAIAH SECOND APPEAL NO. 1307 OF 2011 DT.18.11.2011