THE HON'BLE Ms. JUSTICE G.ROHINI SECOND APPEAL No. 878 OF 2011 Dated: 03.08.2011 Between: Smt. Laxmi Rajyam ..... Appellant AND Mr. A.Krishna Murthy Raju and another ..... Respondents The Court made the following : THE HON'BLE Ms. JUSTICE G.ROHINI SECOND APPEAL No.878 OF 2011 J U D G M E N T : This Second Appeal is preferred against the judgment and decree dated 13.07.2011 in A.S.No.3 of 2011 on the file of the Court of the Principal District Judge, R.R.District at L.B.Nagar, Hyderabad confirming the order of the II-Additional Senior Civil Judge, R.R.District at L.B.Nagar dated 09.11.2010 in E.A.No.50 of 2010 in E.P.No.29 of 2008 in O.S.No.656 of 2005. The facts in brief are as under: O.S.No.656 of 2005 filed by the respondent No.1 herein against the 2nd respondent seeking a decree for eviction from the suit schedule property as well as mesne profits from 01.04.2005 till the date of delivery of possession was decreed by the Court of the V Additional Senior Civil Judge, Fast Track Court, R.R.District by judgment dated 14.12.2007. Challenging the said judgment and decree, the 2nd respondent herein (defendant/judgment debtor) filed A.S.No.126 of 2008 on the file of the Principal District Judge, R.R. District. By judgment dated 07.09.2009 the said appeal was dismissed confirming the judgment and decree in O.S.No.656 of 2005 and even the Second Appeal (S.A.No.920 of 2009) preferred by the defendant was dismissed by this Court. Pursuant thereto, the 1st respondent herein (plaintiff/decree holder) filed E.P.No.29 of 2008 in the Court of the II Additional Senior Civil Judge, R.R. District at L.B.Nagar. While the said E.P. was pending, the appellant herein filed E.A.No.50 of 2010 under Order 21 Rule 58 of C.P.C. making a claim over the plaint schedule property. After hearing both the parties the said claim petition was dismissed by order dated 09.11.2010. Against the said order, the appellant herein/claim petitioner filed A.S.No.3 of 2011 in the Court of the Principal District Judge, R.R.District at L.B.Nagar, Hyderabad. By judgment dated 13.07.2011 the said appeal was dismissed with costs. Hence, the present Second Appeal by the claim petitioner. I have heard the learned counsel for the appellant as well as the learned counsel appearing for the 1st respondent and perused the material available on record. It is vehemently contended by the learned counsel for the appellant that both the Courts below committed a grave error in dismissing the claim petition without properly appreciating the contention of the appellant/claim petitioner that the decree, which was passed against the 2nd respondent herein without impleading the lessee, a registered partnership firm, was not executable and that the decree against the 2nd respondent in his individual capacity was not binding on the partnership firm. As could be seen from the material available on record, E.A.No.50 of 2010 was filed by the appellant herein under Order 21 Rule 58 of C.P.C. claiming that she was one of the partners of the partnership firm namely “Anupama Selections” and that the suit schedule property was let out by the plaintiff to the said partnership firm. It was alleged that the plaintiff had deliberately filed the suit against the sole defendant (2nd respondent herein) in his individual capacity and neither the partnership firm nor the partners, including the claim petitioner were made parties. It was also pleaded that the sole defendant was not authorised to represent the partnership firm and that he did not even inform about the suit proceedings to any of the partners. Thus, it was contended that the decree was not executable against the claim petitioner. The decree holder-1st respondent herein filed a counter denying the allegations made by the claim petitioner. It was pleaded by him that the claim petitioner had nothing to do with the suit property and that the suit property was leased out to the sole defendant-judgment debtor (2nd respondent herein) in the year 1992 for a period of 11 months and therefore the suit was rightly decreed against him. On the basis of the said pleadings, the Executing Court formulated the following points for consideration. 1) Whether there are any legal and valid grounds to allow the claim petition filed by the claim petitioner-3rd party. 2) To what relief ? The claim petitioner did not choose to adduce any evidence either oral or documentary to substantiate her claim, that the suit property was let out to a partnership firm and that she was a partner of the said firm. In the absence of any evidence to establish her claim, particularly having regard to the fact that the contention of the judgment debtor that the suit was bad in law as it was not filed against the partnership firm was negatived by the lower appellate Court as well as this Court in the earlier round of litigation, the learned II Additional Senior Civil Judge, answered the points against the claim petitioner and accordingly, dismissed E.A.No.50 of 2010 by order dated 09.11.2010. While confirming the said findings of fact, the learned Principal District Judge, R.R. District by judgment dated 13.07.2011 dismissed A.S.No.3 of 2011 preferred by the claim petitioner-appellant herein. Admittedly the appellant did not adduce any evidence to establish her claim that she was a partner of the partnership firm-“Anupama Selections” and that the suit schedule property was let out to the said partnership firm. Having made a claim under Order 21 Rule 58 of C.P.C., the burden is heavy on the claimant-appellant herein to establish her claim. Since the appellant failed to discharge the burden placed on her, both the Courts below held that the claimant/appellant herein failed to establish her claim. Such concurrent finding of fact warrants no interference by this Court. However, the learned counsel for the appellant while pointing out that whereas the decree holder obtained the judgment and decree in O.S.656 of 2005 on the file of the Court of the V Additional Senior Civil Judge, Fast Track Court, R.R.District at L.B.Nagar, the decree holder filed E.P.No.29 of 2008 in the Court of the II Additional Senior Civil Judge, R.R.District at L.B.Nagar, vehemently contended that the E.P. was not filed in the proper Court and that the Court of the II Additional Senior Civil Judge, had no jurisdiction to entertain E.P.No.29 of 2008. The said contention cannot be countenanced in the light of the clarification given by the learned counsel for the 1st respondent that the Court of the II Additional Senior Civil Judge being the competent Court to try O.S.No.656 of 2005, it was rightly instituted in the said Court, however, subsequently, it was transferred to the Fast Track Court-V Additional Senior Civil Judge, R.R.District at L.B.Nagar on administrative grounds and after due trial it was decreed by the Fast Track Court by judgment dated 14.12.2007 and therefore, the Court of the II Additional Senior Civil Judge alone has jurisdiction to entertain the execution proceedings. Since the suit was initially filed in the II-Additional Senior Civil Judge’s Court, the execution proceedings were rightly entertained by the Court of the II Additional Senior Civil Judge, R.R. District and therefore, the contention of the learned counsel for the appellant is without any merit. It is also relevant to note that the decree in O.S.No.656 of 2005 is for eviction and therefore, Order 21 Rule 58 of C.P.C. which exclusively deals with attachment of the property in execution proceedings and is applicable only to adjudication of claims to the attachment of property is not attracted at all. Therefore, as rightly submitted by the learned counsel for the 1st respondent E.A.No.50 of 2010 filed under Order 21 Rule 58 of C.P.C. itself was not maintainable. For the aforesaid reasons, the interference by this Court in exercise of jurisdiction under Section 100 of C.P.C. is not warranted on any ground whatsoever. The matter does not involve any question of law much less substantial question of law. In fact, E.A.No.50 of 2010 itself was not maintainable. Accordingly, the Second Appeal is dismissed. No costs. ______________ G. ROHINI, J Date: 03.08.2011 IVD/KLP