IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.775 OF 2010 Between: Thoufic Ali ..... APPELLANT AND Shaik Mahaboob Bee and others ....RESPONDENTS The Court made the following: HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.775 OF 2010 JUDGMENT: The appellant filed O.S.No.297 of 1996 in the Court of Junior Civil Judge, Rajampet, against respondents 8 to 14 (for short, “the judgment debtors”) for recovery of amount. The suit was decreed. After the decree became final, he filed E.P.No.54 of 1999 in the Court of Junior Civil Judge, Markapur. An item of immovable property was got attached. At a time when it was sought to be sold, respondents 1 to 7 (for short, “the respondents”) filed claim statement being E.A.No.163 of 2000, under Order XXI Rule 58 CPC. They pleaded that together they had 30/192 share in the E.P. scheduled property and that the same cannot be brought to sale to satisfy the decree. The application was opposed by the appellant. The executing Court dismissed the E.A. through order, dated 09.02.2007. Thereupon, the respondents filed A.S.No.249 of 2007 in the Court of VI Additional District Judge, Markapur. The appeal was allowed through order, dated 23.12.2009, setting aside the order passed by the executing Court and directing that further steps should be deferred till A.S.No.167 of 1997 pending in the Court of District Judge, Ongole, filed against the judgment and decree in O.S.No.21 of 1989 in the Court of Senior Civil Judge, Markapur, assumes finality. Hence, the Second Appeal. 2. Heard Sri G. Arun Kumar, learned counsel for the appellant. 3. The appellant obtained a decree for recovery of amount against the judgment debtors and the decree has become final. It is, during the course of execution of the decree that certain complications have arisen. The appellant proceeded on the assumption that the judgment debtors are the absolute owners of the E.P. scheduled property and sought to bring it to sale. The respondents pleaded that they have about 15% share in the said property. Reference was also made to a partition suit being O.S.No.21 of 1989, which inturn is the subject matter of an appeal before the District Court, Ongole. 4. The trial Court framed the following three points for its consideration viz.,: “1. Whether the petition schedule property is the absolute property of late Sarambi @ Gurramma? or whether it is the absolute property of late Esamiah? 2. Whether the gift deed dt.18.10.1985 is true, valid and accepted by the donees and had come into force and binding on the petitioners? 3. Whether the petitioners are entitled to claim 30/192 share in the E.P. schedule property as prayed for?” 5. Before the executing Court, on behalf of the respondents, PWs.1 and 2 were examined and Exs.P1 to P10 were filed. On behalf of the appellant, RWs.1 and 2 were examined and Exs.R1 to R7 were filed. 6. Though three points were framed, ultimately, the question would be as to whether the respondents had any share in the E.P. scheduled property. Various facets thereof were divided into separate points. It is a matter of record that O.S.No.21 of 1989 was filed for partition and in that the respondents are parties and the E.P. scheduled property was figured as item ‘A’. The executing Court proceeded to express its opinion on the entitlement of the respondents that they have no share in it. That was totally out of the scope of its jurisdiction, particularly, when a separate suit for partition is filed and an appeal is pending before the appellate forum. The lower appellate Court has taken these aspects into account and reversed the order passed by the executing Court. 7. It cannot be said that the right of the appellant is totally taken away. As of now, two options are open to him. The first is to choose any other property of the judgment debtors or other mode of execution. The second is to wait till the proceedings pertaining to the partition of the E.P. scheduled property assume finality. He cannot be said to have subjected to any hardship. 8. The Second Appeal is, accordingly, dismissed leaving it open to the appellant either to wait till the proceedings initiated through O.S.No.21 of 1989 assume finality or to choose other mode of execution, including any other item of property owned by the judgment debtors. There shall be no order as to costs. ___________________________ L. NARASIMHA REDDY, J July 13, 2011 MD HONOURABLE SRI JUSTICE L. NARASIMHA REDDY SECOND APPEAL No.775 OF 2010 July 13, 2011