HON'BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No. 576 of 2010 %01.04.2010 #Kurupudi Santha Lakshmi and another … Petitioners And $Venturi Harischandrudu and two others … Respondents < GIST: > HEAD NOTE: ! Counsel for Appellant: Sri S.Siva Bhami Reddy ^Counsel for Respondent: NIL ? Cases referred 1. 2007(1) ALD 106 2. AIR 1983 AP 335 3. AIR 2008 SC 2069 4. 1990(3) SCC 291 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No. 576 of 2010 Between: Kurupudi Santha Lakshmi and another … Petitioners And Venturi Harischandrudu and two others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.576 of 2010 ORDER:- This revision under Article 227 of the Constitution of India by the third parties to the suit challenging the correctness of the order passed by the Senior Civil Judge, Ramachandrapuram in dismissing EA.SR.No.2240 of 2009 in E.P.No.64 of 2006 in O.S.No.50 of 2002, dated 01.10.2009. The petitioners, who are the third parties to the suit and execution proceedings and the children of the judgment debtor in E.P.No.64 of 2006, filed the above E.A. under Order 21 rule 58 of the Civil Procedure Code, 1908, (for brevity, “CPC”) claiming that the property to an extent of west side Ac.0-25 cents, out of west Ac.0-90 cents in Ac.1-35 cents in R.S.No.487/4 and east side Ac.0-20 cents out of east Ac.0-90 cents in Ac.1-35 cents in R.S.No.487/4, of Vakatippa village of Kapileswarapuram Mandal was covered under the gift deeds dated 04.05.2006 respectively, executed and registered by her mother Kadali Dhanalakshmi in their favour and hence, the said property cannot be attached and sold in execution of the decree. The trial Court rejected the impugned E.A.SR., observing that the property was sold on 19.12.2008, whereas the petition was filed on 30.04.2009 after four months of the sale. The sale could not be confirmed within 60 days because third party filed claim petition claiming that he purchased a part of the property from the mother of the petitioners. The learned single Judge of this Court in Damodar Naidu v. K.Kondaiah Naidu[1] observed that no claim can be entertained after the attached property is brought to sale. Further, the proviso (a) to Rule 58(1) of Order 21 of CPC speaks that no claim shall be entertained after the sale, but not used the word confirmation of sale and hence, the petition cannot be entertained and accordingly rejected the E.A.SR. In spite of service of notice on the respondents on 06.03.2010, they have not chosen to put up appearance opposing the petition. Heard the learned counsel for the petitioners. A Division Bench of this Court in M/s.Magunta Mining Co., v. M.Kondaramireddy[2] held that whenever a claim is preferred under O.21, R.58 C.P.C. against attachment of immovable properties, the fact that the properties are sold or the sale confirmed will not deprive the Court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial Court or the appellate Court (under the amended Code) and in the event of the claim being allowed, the sale and the confirmation of sale shall to that extent be treated as a nullity and of no effect, as the judgment-debtor had no title which could pay to the Court auction-purchaser. The said judgment was not brought to the notice of the learned single Judge of this Court in Damodar Naidu’s case (1 supra). Further the Hon’ble Supreme Court in Kancherla Lakshminarayana v. Mattaparthi Shyamala and ors.,[3] after referring to its earlier judgment in Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan and Anr.[4], wherein it approved the judgment of this Court Magunta Mining‘s case (2 supra) held that mere holding of the auction does not bar the objections thereto. Since the sale was not confirmed and that made substantial difference. The word “sold” in Clause (a) of the proviso to Rule 58 has to be read meaning thereby a complete sale including the confirmation of the auction. But that confirmation of sale not having taken place, it cannot be said that the objection by the appellant was not ill-founded or untenable as has been held by the trial court. Following the same, it was held that, ‘once it is held, as has been confirmed by this Court in Vannarakkal Kallalathil Sreedharan’s case that the attachment cannot be free from the obligations under the contract of sale, then the necessary sequatur must follow that even after the factum of sale the objection would still lie before the sale is made absolute. In our opinion, therefore, the law laid down by the Andhra Pradesh High Court in M/s.Magunta Mining Co’s case is preferable to the law laid down by the Patna High Court in Kewal Singh’s case.’ In view of the same, the impugned order passed by the trial Court is set aside and the E.A.SR.No.2240 of 2009 is restored to its file and the trial Court is directed to adjudicate the claim of the petitioners on merit. It is needless to say that the sale will be subject to result in the claim petition filed by the petitioners. Accordingly, the civil revision petition is allowed. No costs. __________________ A.GOPAL REDDY, J 01st April 2010 Note: L.R.Copy to be marked. (B/o) lmv [1] 2007(1) ALD 106 [2] AIR 1983 AP 335 [3] AIR 2008 SC 2069 [4] 1990(3) SCC 291