THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.4282 of 2009 Date of Order: 02-09-2011 Between: Perumalla Naga Bushanam ..Petitioner And 1. Naidu Venkanna Babu and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.4282 of 2009 ORAL Order: The petitioner/plaintiff filed this revision under Article 227 of the Constitution aggrieved by the orders of the Additional Senior Civil Judge (Fast Track Court) Gudivada, Krishna District in allowing I.A.No.390 of 2001 in I.A.No.889 of 2000 in O.S.No.84 of 2000, dated 30-07-2009 and cancelling the attachment order passed in I.A.No.889 of 2000, dated 05-09-2000. The petitioner/plaintiff instituted the above suit—O.S.No.84 of 2000 on 24-08-2000 stating that father of the second respondent in I.A. viz. Naidu Satyanarayana (fourth respondent herein) borrowed an amount of Rs.1,00,000/- under the suit pronote dated 25-08-1997 and failed to discharge the debt. So suit notice was issued on 01-02-2000 and thereafter, the present suit was filed. On issuing suit notice, the fourth respondent herein gifted the property under registered gift deed dated 15-07-2000—Ex.A4 in favour of respondents 1 to 3—petitioners in I.A. On filing the suit the petitioner herein filed I.A.No.889 of 2000 for attachment of suit schedule property, which was ordered on 05-09- 2000 and made absolute on 12-09-2000. To raise the said attachment impugned I.A.No.390 of 2001 was filed by respondents 1 to 3 herein under Order XXXVIII Rule 8 and Section 151 CPC. When the said I.A. is pending, suit was decreed on 05-09-2008. On decreeing the suit impugned I.A. was taken up for hearing. It is stated in the I.A. that after the marriage, the second respondent (fourth respondent herein) was addicted to vices and neglected to maintain petitioners 1 to 3 and their mother. Therefore, wife lodged a complaint against the second respondent and others, on which basis Cr.No.56 of 1999 was registered and since then she is living separately. As the JDR—fourth respondent herein tried to alienate his property, the respondents 1 to 3 herein on issuing notice dated 28-06-1999 filed O.S.No.148 of 1999 before the Junior Civil Judge, Kaikalur for partition; along with their mother they also filed M.C.No.24 of 1999 before the Judicial First Class Magistrate, Kaikalur for maintenance. When the said proceedings are pending, at the advice of the relatives the second respondent (fourth respondent herein) effected compromise to convey the title in respect of Ac.3.02 cts. of land to the petitioners 1 to 3 under the gift deed and delivered possession on 25-02-2000. During the course of enquiry in the impugned I.A.No.390 of 2001, the mother of petitioners 1 to 3 was examined as P.W.1 and one more witness was examined as P.W.2 and got marked Exs.A1 to A5; whereas the petitioner/decree holder examined himself as R.W.1 and got marked Ex.B1—certified copy of order in E.A.No.74 of 2001 in E.P.No.48 of 2000 in O.S.No.26 of 2000. The learned Additional Senior Civil Judge after analyzing the oral and documentary evidence by impugned order allowed the I.A. Sri Sesha Sai, learned counsel for the petitioner contends that claim petition filed by petitioners 1 to 3 in E.A.No.74 of 2001 in E.P.48 of 2000 in O.S.No.26 of 2000 was allowed holding that they are entitled to 3/4th share and second respondent is entitled to 1/4th share under Ex.B1. Since the second respondent father of petitioners 1 to 3 is having Ac.0.66 cts., execution of gift deed by him in favour petitioners 1 to 3 in respect of Ac.3.02 cts. is only to defraud the creditors. In view of Section 128 of Transfer of Property Act, when a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein. Therefore, the lower court is not justified in raising attachment. In support of his submissions strong reliance is placed on the judgments of this Court in L.SREENIVASULU v. MUNIRATNAM[1] and SHAIK FATHIMA BI v. V.CHALAPATHY FINANCE CORPORATION[2]. He further contends that attachment was made absolute on 12-09-2000 and suit has been decreed on 05-09-2008. After decreeing the suit the lower court is not having jurisdiction to raise the attachment. Per contra, learned counsel for the respondents contends that while pending the impugned I.A. filed to raise attachment the suit was decreed; therefore, the same can be proceeded and decided independently in view of Order XXI Rule 58 (2) and (4). In support of the same, he placed reliance on the judgment of this Court in J.RAMA MURTHY v. SRINIVAS CORPORATION GENERAL MERCHANTS AND COMMISSION AGENTS[3]. He further contends that as per the settlement arrived between the parties gift deed as such was executed not to defraud creditors like plaintiff, but it was as a result of compromise between the parties as they are litigating in O.S.No.148 of 1999 and M.C.No.54 of 1999 where the second respondent herein, father of petitioners 1 to 3 agreed to gift the property to put a quietus to the litigation. When attachment is made in E.A.No.74 of 2001 in another suit claiming 1/4th share, it cannot be taken into consideration for continuing attachment in the present case. Admittedly, in the present case the respondents 1 to 3 herein filed the impugned IA through their mother for raising attachment effected in I.A.No.889 of 2000, dated 05-09-2000, which was made absolute on 12-09-2000, claiming under gift deed—Ex.A4. The IA is pending as on the date when the suit was decreed on 05-09-2008. This Court in J.RAMA MURTHY v. SRINIVAS CORPORATION GENERAL MERCHANTS AND COMMISSION AGENTS (3 supra) categorically held under Order XXXVIII Rule 10 CPC attachment before judgment will not affect rights of strangers existing prior to attachment. Whereas Rule 11 prohibits re-attachment of the property in execution of the decree which was already attached and Rule 11A contemplates continuance of the proceedings by virtue of Rule 11 initiated under Order XXXVIII Rule 8 to raise the attachment before judgment, even after the suit is decreed. As postulated under Order XXXVIII Rules 8 and 11-A the claim should be adjudicated upon in the manner provided by the earlier provisions of CPC for adjudication of claims to property attached in execution of a decree for the payment of money. It is Order XXI Rule 58 CPC that provides for adjudication of the claims of property attached in execution of a decree for the payment of money. Therefore, a petition filed under Order XXXVIII Rule 8 CPC received its adjudication as contemplated by Order XXI Rule 58 CPC. Order XXI Rule 58 (2) CPC contemplates adjudication of the claim by the Court dealing with the said claim and not by a separate suit. So much so, Order XXI Rule 58(4) is categorical and specific in stating that the order made after such an adjudication shall have the same force and shall be subject to the same conditions as to appeal or otherwise as if it were a decree. Thus, the claim petition would virtually have the status of a suit as per the amended Code. In para-6 of the judgment it was held as follows: “In view of the above discussion it is clear that there is absolutely no bar and on the other hand it is permissible as contemplated by Order XXXVIII Rules 11 and 11A for a petition filed under Order XXXVIII Rule 8 to be continued even beyond the date of decree of the suit, and that the said application has to be tried as if it is a plaint as per Order XXI Rule 58(2) and (4)” Similarly, this Court in L.SREENIVASULU v. MUNIRATNAM (1 supra) approved the judgment of the Madras High Court in DAYANANDAN v. VENUGOPAL (AIR 1964 MAD. 78) wherein it was observed that apart from a universal donee being a legal representative he takes the estate of the donor subject to his liabilities because Section 128 of the Transfer of Property Act fastens liability upon the universal donee in respect of all debts due by the donor at the time of gift though such liability is confined only to the extent of the properties comprised in the gift. Similar is the view taken by this Court in SHAIK FATHIMA BI v. V.CHALAPATHY FINANCE CORPORATION (2 supra) wherein it was held the liability of universal donee to satisfy the debts of the donor also applies to the Mohammedans. It is obligatory on the part of the lower court to give a finding whether the said gift deed is executed as per the settlement arrived between the parties and as per the compromise suggested by the elders to put a quietus to the litigation in M.C.No.54 of 1999 and O.S.No.148 of 1999 and whether the gift deed is executed to defeat the rights of the decree-holder/plaintiff. In the absence of the same, the conclusions reached by the lower court that attachment after execution of the gift deed unless steps are taken for cancellation of the gift deed by filing suit or insolvency proceedings is not entitled to get the attached property sold in execution of the decree cannot be sustained. It is incumbent on the lower court to decide the extent of rights owned by JDR—second respondent, father of petitioners 1 to 3, in view of Sections 127 and 128 of Transfer of Property Act. For the reasons aforementioned, the impugned order is accordingly set aside and matter is remitted to the lower court to dispose of the suit in accordance with law. The C.R.P. is allowed with no order as to costs. _________________ A.GOPAL REDDY, J. 02-09-2011 Murthy [1] AIR 1978 AP 173 [2] AIR 1978 AP 401 [3] AIR 1989 AP 58