THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.477 of 2009 Dated:09.11.2009 Between: M/s.J.B.Constructions. ….Appellant And Tatipally Visvanatham, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.477 of 2009 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellant is a third party to the proceedings in I.A.No.1618 of 2008 in O.S.No.27 of 2008 on the file of the Court of the I Additional District Judge, Nizamabad. By an order dated 22.04.2009 made in the said Interlocutory Application the lower Court directed respondent Nos.2 and 3 (hereafter called, defendants) to furnish third party security, and further ordered to attach the share of the first defendant if there is a failure on the part of the defendants. Alleging that the first respondent has nothing to do with the assets of the appellant, which is a firm, and therefore, ordering attachment of the property of the firm, is illegal, after obtaining leave, the third party filed the present appeal. A perusal of the impugned order dated 22.04.2009 in I.A.No.1618 of 2008 would show that the trial Court ordered attachment of share of the first defendant and not the entire assets of the appellant firm. Be that as it is, if the said attachment before judgment, which is conditional on the failure of the defendants furnishing security for the suit amount, as believed by the appellant, is in respect of the entire property of the appellant firm, the remedy is to move an application under Order XXXVIII Rule 8 of the Code of Civil Procedure, 1908 (CPC), for adjudication of the claim of the property attached or sought to be attached, and an appeal is misconceived. Secondly, there was no order by the trial Court to issue order of attachment in Form No.7 of Appendix F of CPC, and impugned reasoned order only directs the issue of Form No.5 in Appendix F of CPC directing defendants to furnish security. Therefore, we are not inclined to interfere at this stage. We, however, give liberty to the appellant to move an application under Order XXXVIII Rule 8 of CPC. In such an event the trial Court shall adjudicate the same in accordance with the law and dispose of the said application within a period of four weeks from the date of receipt of such application. We make it clear that even if defendants had failed to furnish security by 27.04.2009 as ordered by the lower Court, only the share of the first defendant alone can be attached if there is an order issued in Form No.7. The Civil Miscellaneous Appeal with the above observations is accordingly disposed of. There shall be no order as to costs. _______________ (V.V.S.RAO, J) ________________ (B.N.RAO NALLA, J) 09.11.2009 vs