THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.48 of 2002 ORDER: The appellant filed O.S.No.21 of 1974 in the Court of Principal District Judge, Kadapa for recovery of certain amount against respondents 2 to 7 herein. The suit was decreed and after the decree became final, the appellant filed E.P.No.1 of 1990. Land in different survey numbers of Bayanapalli and Chennur Villages was got attached. Thereupon, the 1st respondent filed E.A.No.1278 of 1999 under Rule 58 of Order 21 C.P.C. He pleaded that the family comprising of respondents 2 to 7 and himself is joint and unless partition takes place, the properties cannot be brought to sale. The trial Court allowed the E.A. through its order, dated 21.08.2001. The same is challenged in this appeal. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. It is rather unfortunate that the decree passed in a suit of the year 1974 could not be enforced, on account of the obstruction created by the 1st respondent. The E.P. was filed two decades ago and nothing was recovered, so far. The only basis pleaded by the 1st respondent for raising the attachment is that no partition has taken place in the joint family. Even if that is so, the executing Court ought to have tentatively ascertained the share of the 1st respondent and proceeded to sell the property to the extent, it is needed for satisfying the decree. Further, Rule 58 of Order 21 C.P.C. mandates that an application filed under it must be adjudicated as though it is a separate suit. In the instant case, no evidence was recorded by the trial Court and simply on the basis of the pleas raised by the 1st respondent, attachment was raised. The order under appeal cannot be sustained. Therefore, the C.M.A. is allowed and the order under appeal is set aside. It is left open to the executing Court to proceed with the sale of the property. In case, any partition has taken place, the shares of the respondents 2 to 7 shall be proceeded against. On the other hand, if no partition has taken place, only such extent of the property, which is needed to meet the liability under the decree, shall be sold duly directing that the property to the extent sold, shall be kept towards the share of respondents 2 to 7 in the event of any partition. There shall be no order as to costs. __________ 26.08.2010 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.48 of 2002 Date: 26.08.2010 JSU