HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3743 OF 2010 DATE:24-09-2010 BETWEEN Mahendra Kumar Jain …Petitioner AND Kailash Chandra Jain & Another …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3743 OF 2010 ORDER: This Revision under Article 227 of Constitution of India is directed against the orders of III Additional District Judge, Kakinada in allowing C.M.A.No.66 of 2003, dated 13.7.2010 and setting aside the orders passed by the Principal Senior Civil Judge, Kakinada in I.A.No.866 of 2003 in O.S.No.165 of 2003, dated 19.9.2003. The petitioner herein who is a claim petitioner and third party to the suit filed I.A.No.866 of 2003 under Order 38 Rule 8 read with 151 C.P.C. for raising attachment order passed in I.A.No.824 of 2003, dated 2.5.2003 in O.S.No.165 of 2003 stating that he is the sole proprietor and doing the business in the name and style of ‘Mahesh Motors’, that he is no way concerned with the business of second respondent-defendant, that the first respondent-plaintiff along with court Amin came and represented that the stock in the business premises of the petitioner is got attached by first respondent-plaintiff. Though the petitioner stated that the second respondent-defendant is no way connected with the business of Mahesh Autos, the first respondent-plaintiff and the Court Amin demanded him to give security. It is alleged that due to family disputes, the second respondent-defendant set up the first respondent-plaintiff and got filed the suit; that the first respondent-plaintiff has no manner of right to attach the petition schedule property; that he is ready to deposit the suit amount without prejudice to his rights and contentions; and that he prayed to raise the attachment in I.A.No.824 of 2003, dated 2.5.2003. The plaintiff-second respondent herein filed a counter denying the allegations made in the petition and stated that he filed I.A.No.824 of 2003 for attachment of movables and subsequently filed petitions for break open locks and police aid and the court prepared inventory report for part of the property and in the meanwhile, the petitioner-claim petitioner obtained interim directions to stop attachment. The petitioner-claim petitioner at the instigation of his brother Kailash Chandra filed the petitions to advance I.A.No.824 of 2003 and for permission to deposit Rs.1,20,000/- and that the registration certificate produced from Assistant Commercial Tax Officer, kakinada showing that the said Mahesh Motors is a partnership firm and Kailash Chandra is Managing Partner is a fabricated one. The defendant filed a counter opposing the petition. I.A.no.1164 of 2003 was also filed by the defendant in the suit stating that he paid the entire suit amount, that the suit claim was fully satisfied, that he is the sole proprietor of Trisul Autos, and that the goods that were attached belong to Trisul Autos. Therefore, he prayed to hand over the keys and movable properties by raising the attachment. The trial Court by order, dated 19.7.2003 dismissed I.A.No.824 of 2003 filed for attachment of the properties and consequently allowed the impugned application i.e. I.A.No.866 of 2003 raising the attachment made in I.A.No.824 of 2003 with a direction to the Amin to take the key handed over to the Court immediately and hand it over to the claim petitioner-petitioner herein along with the properties handed over to the plaintiff as per the report filed before the Court and to file compliance report by 22.9.2003. The trial Court also dismissed I.A.No.1992 of 2003 and I.A.No.1164 of 2003. Aggrieved by raising of the attachment in I.A.No.866 of 2003, the defendant carried the matter in appeal before the lower appellate Court. By the impugned order, the lower appellate Court allowed the appeal and set aside the order passed by the trial Court in I.A.No.866 of 2003 and remitted the matter to the trial Court to dispose of the same afresh as per the observations made by it. Questioning the same, the present revision is filed. The learned counsel for the petitioner contended that against an order passed under Order 38 rule 8 C.P.C., no appeal lies under Order 43 and therefore, the lower appellate Court would not have any jurisdiction to entertain the appeal and therefore, sought to set aside the impugned order. Indisputably, I.A.No.866 of 2003 was filed under Order 38 Rule 8 read with Section 151 C.P.C. to raise the attachment order. On filing such application, the trial Court adjudicated the claim to the property attached before judgment. Under Order 43 (1) (q) C.P.C., an order under Rule 2, Rule 3 and Rule 6 of Order 38 alone are appellate orders and no appeal is provided against an order under Order 38 Rule 8 C.P.C. In view of the same, the appeal filed by the defendant cannot be entertained. Hence the entertainment of the appeal and allowing the same by the lower appellate Court is without jurisdiction. The impugned order cannot be sustained and the same is accordingly set aside. The Civil Revision Petition is allowed accordingly. No order as to costs. _______________ A. GOPAL REDDY, J. SEPTEMBER 24, 2010 Tsr.