The Hon’ble Sri Justice B.Prakash Rao Second Appeal No.560 of 1997 Judgment: Heard both sides. This Second Appeal under Section 100 of the Civil Procedure Code, 1908 (for short the ‘CPC’) is filed inter alia at the instance of defendant Nos.10 and 11 in O.S.No.479 of 1979, assailing the correctness of the judgment and decree, dated 28-03-1997, passed by the learned Subordinate Judge, Kovur, Nellore District, dismissing their appeal being A.S.No.15 of 1992 and confirming the judgment and decree, dated 13-07-1992, passed by the learned Principal District Munsif, Kovur, Nellore District, in OS.No.479 of 1979. All the details and other facts need not be necessary to be gone into, in view of the substantial question of law, which is sought to be raised on behalf of the appellants in this Second Appeal for the first time. Admittedly, O.S.No.479 of 1979 is a claim suit filed by the plaintiff to set aside claim order, dated 18-10-1976, in EA.No.201 of 1974 in EP.No.68 of 1973 in OS.No.97 of 1971 on the file of the Principal District Munsif’s Court, Kovur. Therefore, having regard to the amendments brought forth to the CPC, OS.No.479 of 1979 should have been filed within a period of one year from the date of the said claim order but the same was filed in 1979. Since the said suit was filed beyond one year period of limitation, the question, which is sought to be raised by the appellants in this Second Appeal is a substantial question of fact and law, and it reads as follows: “Whether the courts below have not committed an error in not noticing that the claim petition in EA.No.201/74 in EP.No.68/73 in OS.No.297/71 was filed by the deceased Byna Krishna Murthy the husband of the 1st appellant and father of 2nd appellant from Veluru Subrahmanyam Pillai, the husband f the 2nd respondent and father of respondents 3 to 9. Order 21 Rule 58 of old CPC seeking for raising of the attachment in respect of the plaint schedule property and the trial court passed a claim order, dated 18-10-1976, allowing the said claim petition and therefore, the provisions of old CPC would apply and as per the provisions of old CPC a claim suit is permitted under Order 21 Rule 63 of the old CPC within one year from the date of claim order in E.A.No.201/74 in E.P.No.68/73 in O.S.No.297/71 (on the file of the DistrictMunsif Court, Kovvur).” Admittedly, this plea was not raised before the Court below nor there was any opportunity for the other side as well to contest the same either by adducing any evidence or otherwise, whichever they felt desirable, and as rightly submitted by the learned Counsel for the appellants, this issue requires to be considered afresh. The Second Appeal is, therefore, allowed and the judgment and decree, dated 28-03-1997, passed by the learned Subordinate Judge, Kovur, Nellore District, in A.S.No.15 of 1992 and the judgment and decree, dated 13-07-1992, passed by the learned Principal District Munsif, Kovur, Nellore District, in OS.No.479 of 1979 are hereby set aside. The matter is remitted to the Court of the Principal District Munsif, Kovur, Nellore District, for disposal on merits and in accordance with law only to the extent of bar of limitation as stated above. There shall be no order as to costs. _______________ B.Prakash Rao, J Date: 12-08-2010 lur