HONOURABLE SRI JUSTICE G. CHANDRAIAH CIV IL REVISION PETITION No. 3775 of 2009. 17th MARCH, 2010. BETWEEN Kaparthi Venugopal and anr ….Petitioner and Jagadamba Financiers, Nizamabad, Through its Prop.Sri Namdev Parusuram Bhosle and ors ….Respondents. HONOURABLE SRI JUSTICE G. CHANDRAIAH CIV IL REVISION PETITION No. 3775 of 2009. ORDER: This Civil Revision Petition under Article 227 of the Constitution of India is ﬁled aggrieved by the order dated 29.1.2009 passed in I.A.No. 625 of 2003 in I.A.No. 451 of 2003 in O.S. No. 101 of 2003 on the ﬁle of the learned Senior Civil Judge, Nizamabad, whereunder and whereby the claim petition ﬁled by the petitioners under Order XXXVIII Rule 8 read with Section 151 CPC was dismissed. Brief facts necessary for disposal of this revision are as under : The ﬁrst respondent/plaintiﬀ ﬁled O.S.No. 101 of 2003 on the ﬁle of the learned Senior Civil Judge, Nizambad, for recovery of amount from the respondents 2 and 3/defendants 1 and 2. Along with the said suit, he ﬁled I.A.No. 451 of 2003 for attachment of the schedule property before judgment. The Court below passed order dated 15.6.2003 eﬀecting the attachment by showing the suit schedule property as Item No.2. On coming to know about the attachment of the schedule property before judgment, the petitioners herein ﬁled claim petition being I.A.No. 625 of 2003 stating that the schedule property is their own property, respondents 2 and 3/defendants 1 and 2 have no right, title or interest over the same and prayed for setting aside the attachment of the schedule property. In the aﬃdavit ﬁled in support of the said claim petition, it was stated that the petitioners are the absolute joint owners, pattadars and possessors of agricultural land measuring Ac.1.37 ½ guntas comprised in Sy.Nos. 1881,1882 and 1889/AA of Nizamabad Shivar (Nagaram Hamlet) with existing sheds, RCC room, rice-mill, plant etc., having purchased the same for valuable consideration under a registered sale deed dated 19.4.2002 from one Sri Mankali Lingaiah Gupta. The Mandal Revenue Oﬃcer passed orders dated 11.11.2002 changing the ROR entries in favour of the petitioners and issued title pass books in their names. Mutation proceedings dated 21.6.2002 were also passed by the Municipal Council, Nizamabad. Subsequent to the purchase of the schedule property, the petitioners developed the property by laying new tin roof, renovated the machinery, plant, constructed go-downs, compound wall, platform and made necessary repairs to the old structure. Thereafter, the petitioners are running the milling and allied business activities in the schedule property under the name and style of M/s., Kaparthi Industries and they are in peaceful possession and enjoyment of the same since from their purchase to the knowledge of all persons concerned and public in general. It was stated that respondents 2 and 3/defendants 1 and 2 have no title, right or interest of whatsoever over the schedule property and only with an intention to grab the schedule property, colluded with the ﬁrst respondent/plaintiﬀ and ﬁled the aforesaid suit. It was further stated that in the earlier the ﬁrst respondent ﬁled suit being O.S.No. 35 of 2001 against second and third respondents in the same Court and when the suit schedule property was shown for attachment, the Court after due enquiry in I.A.No. 197 of 2001 observing that the schedule property does not belong to second and third respondents, passed order dated 28.9.2001 directing attachment of other property. The said order was not challenged and it become final. To the said claim petition, the ﬁrst respondent/plaintiﬀ ﬁled counter stating that the second and third respondents/defendants have no right to transfer the suit schedule property to any body either directly or through their family members as the said property was impleaded in I.P.No. 14 of 2001 ﬁled by second and third respondents/defendants; that second and third respondents/defendants have given an undertaking in O.S.No. 35 of 2001 that they will not alienate the petition schedule property, which was mortgaged with Bank of Commerce, Nizamabad; that pursuant to an application being I.A.No. 74 of 2002, the schedule property was impleaded in I.P.No. 14 of 2001 by order dated 28.9.2002; that inasmuch as the schedule property was impleaded in IP.No. 14 of 2001, neither the claim petitioners have right, title or interest nor respondents 2 and 3/defendants have right to transfer it in favour of anybody; and that in I.A.,No. 197 of 2001 in O.S.No. 35 of 2001, the Court below did not pass any order for attachment of the schedule property since some other property mentioned therein is sufficient for suit claim. The Court below on a consideration of the evidence brought on record dismissed the claim petition observing that inasmuch as the suit was decreed with costs, the claim petition is dismissed Hence this revision. The learned Counsel for the petitioners relying on the judgment of this Court in Kota Sreevalli Vs. Chinni Seetharamaiah {2006(3) ALT 215} contended that the Court below ought not to have dismissed the claim petition merely on the ground that the suit was decreed with costs. He further contended that it is the duty of the Court below to decide the claim petition on merits of the case and ought to have passed an independent order irrespective of the fact that the suit was decreed and therefore, the manner in which the order under revision passed by the Court below is an error on the face of the record and the same is unsustainable and liable to be set aside. On the other hand, the learned Counsel appearing for the respondents, relying on the judgment of the Full Bench of this Court in Gurram Seetharam Reddy Vs. Gunti Yashoda {2004(6) ALD 175 (FB)} submitted that against the order passed in the application ﬁled under Order XXXVIII Rule 8 CPC, appeal lies and the Civil Revision Petition is not maintainable. He further submitted that even on merits, the Court below has not committed any error in dismissing the claim petition. It is the case of the petitioners that they are the absolute joint owners , pattadars and possessors of the petition schedule property having purchased the same under a valid registered sale deed dated 19.4.2002 and that the respondents/defendants have no right ,title or interest over the petition schedule property. On the other hand, it is the case of the respondents that the petition schedule property was already mortgaged with the Bank of Commerce and therefore, the petitioners cannot sell away the same; that the petitioners have given an undertaking in O.S.No. 35 of 2001 on the ﬁle of the same Court that they will not alienate the petition schedule property and that pursuant to the order dated 28.9.2002 in I.A.No. 74 of 2002, the petition schedule property was impleaded in IP.No. 14 of 2001. Without adverting to the merits or otherwise of the contentions raised before this Court, the prime question that arises for consideration is whether this Civil Revision Petition is maintainable. The learned Counsel for the petitioners submitted that the Court below ought to have given valid reasons in dismissing the claim petition. Placing reliance on the judgment of this Court in Kota Sreevalli’s case (supra), he submitted that the order under revision is liable to be set aside. In the said judgment it was held as follows: “When there exists a regular remedy of appeal, the High Court cannot examine the correctness of a decree, in the proceedings under Article 227 of the Constitution of India. However, it need sot be noticed that the very purpose of conferring supervisory jurisdiction under Article 227, is to arm the High Court with adequate power, to ensure that the subordinate Courts do not deviate from the Settled principles of law, particularly, in the matter of procedure. A clear distinction needs to be maintained, as to the adjudication of the ﬁndings recorded by the Courts, on the merits, on the one hand, and examination of deviation, if any, by the subordinate Court, from the settled procedure, on the other hand. While the former is in the exclusive province of remedy of appeal, the latter can certainly constitute the subject matter of the revision, under Article 227. It is in this context that the present matter needs to be examined.” The facts of the aforesaid case are entirely diﬀerent to the facts of the case on hand. In the aforesaid case, the issues that arose for consideration are as to whether it is permissible to join diﬀerent causes of auction in one suit, whether it is permissible for diﬀerent persons claiming under diﬀerent pronotes to join together and ﬁle a single suit, whether ﬁrm must be made a party where a suit is ﬁled against a ﬁrm, whether it is permissible to implead partners of ﬁrm in the sit and whether the documents as proof can be taken otherwise than through a witness is almost unknown to law. The principle laid down by the learned Single Judge has to be adjudged on the touch stone of the facts of each case. In the case on hand, the Court below simply dismissed the petition without assailing valid reasons and the same can be assailed in the remedy of appeal provided under law. The learned Counsel for the petitioners also placed reliance on the judgment of this Court in J.Rama Murthy Vs. Srinivas Corporation General Merchantas & Commission Agents {AIR 1989 AP 58} wherein the point that arose for consideration is whether petition under Order XXXVIII Rule 8 can be continued even beyond the decree. A learned Single Judge of this Court held that the same could be continued. The said case is also not applicable. In the case on hand, the claim petition was dismissed on the ground that the suit was already decreed. On the other hand, the learned Counsel for the respondents placed reliance on the judgment of the Full Bench of this Court in Gurram Seetharam Reddy (supra). Speaking for the Full Bench, the Honourable Chief Justice Devinder Gupta (as he then was) observed as follows: “ In relation to delivery of possession, the gist of the amendment is reﬂected in Rules 101 and 103 of Order XX!. A perusal of Rule 58 discloses that all questions, including those relating to right, title or interest in the attached property, are required to be decided by the same Court and not by separate suit. Indirectly, an application ﬁled under Rule 58 is conferred the status of a suit. The necessity to ﬁle a suit, in relation to such claims, would arise, if only the executing Court refused to entertain the claims or objections. The grounds for not entertaining the claims or objections are conﬁned to those enumerated under proviso to sub- rule(1) of Rule 58. The nature of disposal to be given to the claims or objections, ﬁled under sub-rule (1), is indicated in sub-rule(3). Under sub-rule (4), the order passed on such claims or objections, is to have the same force and be subject to the same conditions as if it were a decree for the purpose of preferring the appeal and other related matters. The intention of the Legislature in extending the force of a decree, to an order passed under Rule 58, particularly in the context of appeal, is very clear” It was further observed as follows: “To appreciate as to whether the view taken by the Division Bench in Nookaraju V.M.S.N.Charities {AIR 1984 P&H 391} conﬁrms to the mechanism of appeals provided for under C.P.C., it is necessary to refer to the relevant provisions. C.P.C. provides for two kinds of appeals from the adjudications undertaken by Courts of the Original jurisdiction, namely, appeals against decrees and appeals against orders. The formers are provided for under Section 96 and the latter under Section 104……” From the above, it is clear that against the order passed under Order XXXVIII Rule 8 CPC, remedy of appeal is provided under law. Having regard to the fact that the suit was already dismissed, there may not be any lengthy order. If an alternative remedy of appeal is available under law, the aggrieved party cannot resort to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution of India. If the petitioners feel that the order passed by the Court below is without assigning valid reasons, they can as well assail the same in the appeal remedy, but not in the revision. For the foregoing discussion, the Civil Revision Petition is not maintainable and the same is accordingly dismissed. No order as to costs. -------------------------------------- JUSTICE G.CHANDRAIAH DATED 17T H MARCH, 2010. Msnr.