THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.115 of 2010 JUDGMENT: Respondent No.1 filed O.S.No.87 of 1987 in the Court of Senior Civil Judge, Vizianagaram, against respondent No.2 for the relief of specific performance of an agreement of sale. The suit was decreed and the decree became final. Thereafter, respondent No.1 filed E.P.No.70 of 2003 under Order 21 Rule 34 C.P.C. At that stage, the appellant, who is none other than the wife of the judgment debtor filed an application, raising objection to the effect that a sale deed was already executed in her favour in respect of the schedule property. The application was not entertained and the matter landed before this Court in the form of a revision. The revision was disposed of leaving it open to the appellant to file an application under Rule 58 of Order 21 C.P.C., if occasion arises. The appellant filed E.A.No.392 of 2005 under Rule 58 of Order 21 C.P.C. Respondent No.1 raised an objection stating that E.A.No.392 of 2003 is not maintainable, since the property was not attached at all. The executing Court dismissed the E.A. through order, dated 20.08.2007. Aggrieved thereby, the appellant filed A.S.No.96 of 2007 in the Court of District Judge, Vizianagaram. The appeal was dismissed on 26.11.2009. Hence, this second appeal. Heard Sri Venkateswara Rao Gudapati, learned counsel for the appellant and Sri D.Linga Rao, learned counsel for respondent No.1. The appellant claims independent title in respect of the property, which is the subject matter of the decree in O.S.No.87 of 1987. After making a futile attempt to intervene at an earlier stage, the appellant filed E.A.No.392 of 2005 under Rule 58 of Order 21 C.P.C. Since an application filed under that provision is treated almost as a suit, the trial Court recorded oral and documentary evidence. On behalf of the appellant, P.Ws.1 to 3 were examined and Exs.A1 to A6 were filed. On behalf of respondent No.1, R.W.1 was examined and no documentary evidence was adduced. The trial Court dismissed E.A.No.392 of 2005 by taking the view that the application was not maintainable, since the property was not attached at all. The appellant filed A.S.No.96 of 2007 in the Court of the District Judge, Vizianagaram and the same was dismissed. The very heading of Rule 58 of Order 21 C.P.C. indicates that it provides for adjudication of claims or objections as to attachment of property. In case the property in question is not attached, the occasion to file an application under that provision does not arise. The suit filed by respondent No.1 was the one for specific performance of an agreement sale. For enforcing the decree in such a suit, the necessity to attach the property may not arise. In case the decree holder is already in possession of the property, the only step that is required to be taken in the execution would be to compel the judgment debtor to execute the sale deed and on his failure, the Court itself would execute the document. If, on the other hand, there is a prayer for delivery of possession also, the same can be achieved through execution without necessity of attaching the property. It is not as if a third party having a right in the property is without any remedy. He can knock the doors of the executing Court by filing an application under Rule 97 of Order 21 C.P.C. The adjudication by the executing Court would be almost on par with the one undertaken in an application filed under Rule 58 of Order 21 C.P.C. The executing Court and the lower appellate Court did not express any view on the merits of the claim of the appellant. They refused to grant the relief only on the ground that the application is not maintainable under the provision invoked by her. Reliance is placed upon the judgment rendered by a Full Bench of this Court in Pallamreddy Masthan Reddy Vs. Nellore Finance Corporation[1] in support of the contention of the appellant that the application filed by her is maintainable. A perusal of the said judgment discloses that their Lordships explained the scope of Rule 58 of Order 21 C.P.C. as it stood before it was amended in the year 1976, and thereafter. The emphasis was only upon the controversy as to possession. Subsequent to the amendment, power was conferred upon the Court to decide the question of title also. Nowhere in that judgment, their Lordships held that an application under Rule 58 of Order 21 C.P.C. can be filed by a third party even if the property in question was not attached. Therefore, the second appeal is dismissed. It is left open to the appellant to file an application under Rule 97 of Order 21 C.P.C, in case, respondent No.1 initiates steps seeking delivery of possession or to file an independent suit for declaration of title and other ancillary reliefs. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:10.11.2011 kdl/jsu [1] AIR 1993 Andhra Pradesh 297