THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL MISCELLANEOUS APPEAL No.222 of 2022
JUDGMENT:-
This Civil Miscellaneous Appeal under Order XLIII Rules 1
and 2 of Code of Civil Procedure, 1908 (for short 'CPC') is filed by
defendant in suit, against order, dated 12.04.2022 passed in
I.A.No.1225 of 2019 in O.S.No.573 of 2019 on the file of learned
Principal Junior Civil Judge, Proddatur, whereby conditional
attachment affected on 04.11.2019 was made absolute while
decreeing the suit.
2. The brief facts of the case are that respondent/plaintiff filed
suit O.S.No.573 of 2019 for recovery of amount and along with the suit, the respondent/plaintiff filed I.A.No.1225 of 2019 seeking conditional attachment. The trial Court by docket order, dated 21.10.2019, while issuing show cause notice to the appellant/defendant calling upon him to furnish security for a sum of Rs.19,69,000/- within 48 hours, passed conditional 2 attachment in respect of petition schedule property and the said attachment was affected on 04.11.2019.
3. Appellant/defendant filed counter in the said petition and the petition underwent several adjournments for enquiry.
4. In the meantime suit in O.S.No.573 of 2019 was decreed on 12.04.2022 and the following order was passed in I.A.No.1225 of 2019:
"Since the main suit is decreed, the attachment affected on 04.11.2019 is made absolute."
5. Against the judgment and decree of the trial Court, appellant/defendant filed regular appeal before the appellate Court and against the docket order passed in I.A.No.1225 of 2019, the present miscellaneous appeal is filed.
6. This Court while ordering notice to respondent/plaintiff permitted learned counsel for the appellant/defendant to take out personal notice. In compliance, learned counsel for the appellant/defendant filed proof of service memo along with 3 acknowledgment, vide USR No.57836 of 2022. Despite service of notice on the respondent/plaintiff none appeared on his behalf.
7. Heard Sri V. Nitesh, learned counsel for the appellant.
8. Learned counsel for the appellant would contend that the trial Court failed to appreciate the fact that on the date of passing the order appellant/defendant is not having any saleable right in connection with the petition schedule property as it is not self acquired property and it is acquired under DKT.
9. When this Court raised a question with regard to maintainability of this appeal, learned counsel for the appellant submitted that trial Court, without deciding the application, inspite of filing of counter by the appellant/defendant, made the attachment affected on 04.11.2019, absolute pursuant to the decree passed in the suit and hence, appeal would lie under Order XLIII.
10. It is apt to have a look at Section 105 of CPC, which deals with the situation of this nature.
4
"(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand 1 *** from which an appeals lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
11. A reading of the above section would indicate that where no appeal would lie from any order made by the Court in exercise of its original appellate jurisdiction, the affected person shall raise grounds in the grounds of appeal.
12. In the instant case since suit was decreed, the trial Court made the conditional attachment affected on 04.11.2019 absolute, the appellant can raise all the grounds in the appeal regarding attachment also.
13. The miscellaneous appeal filed under Order XLIII is not maintainable and the same is liable to be dismissed. Therefore, this Civil Miscellaneous Appeal is dismissed leaving it open to the 5 appellant/defendant to raise appropriate grounds in appeal filed by appellants against the judgment and decree. No costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI Date: 19.09.2022 ikn 6 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI C.M.A.No.222 of 2022 Date: 19.09.2022 ikn