THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.S.A.No.62 of 2009 JUDGMENT: This civil miscellaneous second appeal is directed against the judgment dated 10.8.2009 passed in A.S.No.29 of 2007 on the file of the I Additional District Judge, East Godavari at Rajahmundry whereby and whereunder the learned Additional District Judge dismissed the appeal filed under Section 96 and Order 41 Rule 1 of CPC. 2. The background of facts in a nutshell leading to filing of this civil miscellaneous second appeal by Parvathini Bala Satish are that Godithi Srilatha filed a suit in O.S.No.76 of 1998 on the file of the Senior Civil Judge, Ramachandrapuram against Parvathini Subba Rao and obtained a decree. After the decree, P. Subba Rao died. The decree holder filed E.P.No. 52 of 2003. Pending the suit, an order of attachment was obtained by the plaintiff in O.S. No.76 of 1998. The appellant herein filed I.A.No.434 of 1999 to raise the attachment and the said I.A. ended in dismissal. Godithi Srilatha decree holder filed E.P. No. 52 of 2003 and brought the attached properties of deceased Subba Rao, which are in the hands of his legal representatives i.e. wife and children, for sale. While so, the appellant Parvathini Bala Satish filed E.A.No.188 of 2003 under Order 38 Rule 8 to raise the attachment in respect of item No.1 of the E.P. schedule property. He claimed that the item No.1 of the E.P. schedule property has been purchased by him through his mother under an agreement of sale dated 4.1.1997 from Subba Rao for Rs.3,50,000/-. On the date of the agreement, Subba Rao received Rs.2,62,500/-. Subsequently he paid Rs.50,000/- on 25.6.1997 and Rs.37,500/- on 15.9.1997. As Subba Rao died without executing regular registered sale deed on 16.8.1998, he filed suit in O.S.No.37 of 1999 seeking specific performance of the agreement of sale dated 4.1.1997. After filing the suit, he came to know that Subba Rao borrowed money from P.A.C.S, Pulagurtha and therefore he paid Rs.16,800/- through D.D. dated 26.11.1999 and P.A.C.S. Pulagurtha received the amount and issued a receipt. On coming to know that Godithi Srilatha attached the properties for realization of her decretal debt, he moved E.A.No.188 of 2003 for raising attachment. 3. Godithi Srilatha-decree holder resisted the application of the appellant- petitioner by filing counter. It is stated in the counter that the appellant-petitioner once filed I.A.434 of 1999 to raise attachment and the same ended in dismissal and therefore, subsequent application seeking self-same relief is barred by the principles of resjudicata. 4. On behalf of the appellant- petitioner, he himself examined as PW.1 and got marked six documents as Exs.A.1 to A.6. On behalf of Godithi Srilatha-decree holder, RW.1 was examined. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the petitioner failed to prove his possession over the property and so also title over it. With the above findings, the learned senior civil Judge dismissed the application of the appellant-petitioner, by order dated 22.12.2006 . The appellant petitioner assailed the said order by filing an appeal being A.S.No.29 of 2007 on the file of the I Additional District Judge, East Godavari at Rajahmundry. The learned District Judge formulated the following points for determination: “ i. Whether the agreement of sale dated 4.1.1997 is true, valid and binding on the respondent/Decree Holder? ii. Whether the petition is barred by the principles of Res- judicata? i. Whether the petitioner is entitled for raising attachment of the petition schedule property?” 5. The learned Additional District Judge on reappraisal of the evidence brought on record and hearing the counsel appearing for the parties, came to the conclusion that the application filed by the appellant is barred by the principles of res-judicata and that the appellant-petitioner also failed to prove the agreement of sale dated 4.1.1997. With the above findings, the learned Additional District Judge dismissed the appeal confirming the order dated 22.12.2006 passed in E.A.No.188 of 2003 in E.P.No.52 of 2003 in O.S.No.76 of 1998, on the file of the court of Senior Civil Judge, Ramachandrapuram. Hence this Civil Miscellaneous Second Appeal by the petitioner-claimant. 6. Heard the learned counsel appearing for the appellant and perused the material brought on record. 7. Learned counsel appearing for the appellant submits that the finding recorded by the lower appellate court on the validity of the agreement of sale cannot be sustained since the appellant filed the suit basing on the said agreement of sale and obtained a decree. A further submission has been made that the trial court as well as lower appellate court failed to consider the evidence brought on record in right perspective and thereby erred in dismissing the claim application filed by the appellant. 8. Indisputably, the property of Subba Rao came to be attached pending the suit. The appellant herein filed I.A.No.434 of 1999 for raising the attachment. The said application ended in dismissal. The appellant did not chose to challenge the said order by filing any appeal. Once the application filed by him to raise the attachment ended in dismissal and dismissal order reached finality, it is impermissible for him to file application once again in the execution proceedings seeking self-same relief. The principles of res- judicata are applicable to the facts and circumstances of the case. The trial court and the lower appellate court have considered the evidence brought on record in right perspective and recorded a finding that the agreement of sale pressed into service by he appellant does not invalidate the attachment effected in the suit. There is no substantial question of law involved in this civil miscellaneous second appeal warranting admission. 9. Accordingly, the civil miscellaneous second appeal is dismissed at admission stage. No order as to costs. ________________________ B.SESHASAYANA REDDY,J 19.11.2009 Stp