Telangana High Court
Pabba Murali vs Ramakishore Mundada on 31 March, 2026
Author: K.Lakshman
Bench: K.Lakshman
THE HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
APPEAL SUIT NO.103 OF 2026
DATED: 31.03.2026
Pabba Murali
... Appellant - Claim Petitioner - Defendant No.2
Vs.
1.Ramakishore Mundada
... Respondent No.1 - decree holder - Plaintiff
2.Jilla Srinivas
... Respondent No.2-JDR No.1 - Defendant No.1
JUDGMENT
(per the Hon'ble Sri Justice K.LAKSHMAN)
1. Heard Sri R.A.Chary, learned counsel for the appellant, Sri Damodar Mundra, learned counsel for the respondent No.1 and Sri Bethi Venkateswarlu, learned counsel for the respondent No.2.
2. This Appeal is preferred under Section 96 of CPC, challenging the order dated 22.12.2025 in E.A.No.154 of 2023 in E.P.No.11 of 2022 in 2 O.S.No.211 of 2014, passed by the learned I Additional District Judge, Karimnagar.
3. Respondent No.1 - plaintiff has filed a suit in O.S.No.211 of 2014 initially against respondent No.2 - defendant No.1 for recovery of an amount of Rs.1,46,02,083/-. Along with the said suit, respondent No.1 - plaintiff has also filed an Interlocutory Application vide I.A.No.825 of 2014 under Order XXXVIII Rule 5 of CPC seeking attachment before judgment. The same was ordered on 31.12.2015 attaching the properties mentioned therein including item No.2 of the EP schedule property.
4. Thereafter, learned Trial Court decreed the said suit on 02.03.2021 directing respondent No.2 - defendant No.1 to pay an amount of Rs.1,46,02,083/- with subsequent interest at the rate of 6% per annum from the date of suit till the date of realization. However, suit against appellant herein - defendant No.2 was dismissed.
5. Respondent No.1 - decree holder has filed an Execution Petition vide E.P.No.11 of 2022 against respondent No.2 - defendant No.1 by mentioning that the appellant herein as proforma formal party.
6. During the pending of the Execution Petition, appellant herein - defendant No.2 has filed claim petition vide E.A.No.154 of 2023 under 3 Order XXI Rule 58 of CPC read with Section 47 of CPC and 151 of CPC to exclude or remove the House No.3-1-824 (Part) and House No.3-1-825 (Part) constructed in plot No.39, admeasuring 199 sq.yards, in Survey Nos.1297 and 1298, situated at Christian Colony, Jagtial Road, Karimnagar, from the Execution Petition, contending that the appellant and respondent No.2 have purchased the said properties under a registered sale deed bearing document No.7972/2013, dated 04.07.2013 and they have also entered into a registered partition deed bearing document No.6698 of 2022, dated 09.06.2022.
7. However, respondent No.1 - decree holder did not file any counter in the said claim petition.
8. Vide impugned order dated 22.12.2025, learned Execution Court Dismissed the said application holding that the claim petitioner got nothing to do with the dispute between the plaintiff and the defendant in O.S.No.211 of 2014. Even the claim petition is owner of the claim petition schedule property which was purchased along with J.Dr.No.1. The Executing Court has to consider the claim of the D.Hr. who filed the Execution Petition at first and needs to consider how it can be executed. No doubt, the claim of the claim petitioner is also equally important, but in view of the nature of the property, it is not possible to exclude or 4 divide the property of the claim petitioner from sale proceeds. The Executing Court can consider the request of the claim petitioner if he intends to purchase the property of the J.Dr.No.1 as he will be having right of presumption. Learned Executing Court further held that Sections 2 and 3 of the Indian Partition Act speaks about the power of Court to order for sale in partition. Item No.2 of the E.P. schedule properties which is put to sale cannot be divided as it is a single building. Following Sections 2 and 3 of the Indian Partition Act, appears to be fruitful for both the parties. Therefore, the claim petition filed by the claim petitioner cannot be considered and claim petitioner is at liberty to consider Section 2 of the Indian Partition Act. Challenging the said order, the appellant/claim petitioner filed the present claim petition.
9. As discussed supra, appellant herein has claimed right over the aforesaid property basing on the aforesaid registered sale deed and registered partition deed. He has specifically mentioned the said fact in the claim petition and also filed certified copies of the aforesaid two registered documents. Even then, without affording an opportunity to the appellant herein, to lead evidence in support of his claim, learned Executing Court dismissed the aforesaid claim petition filed by the appellant herein.
5
10. As per Order XXI Rule 58 of the CPC, the duty cast upon the Executing Court is to adjudicate all the questions relating to the rights of the parties. Order 21 Rule 58 of CPC is relevant and is extracted below:-
Order XXI Rule 58: Adjudication of claims to, or objections to attachment of property.
(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained:
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination:
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or 6
(d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute;
but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive.
11. In Palla Chenchu Harikala vs. Bysani Satish1, Division Bench of High Court of Andhra Pradesh at Amaravathi had an occasion to deal with scope and ambit of Order XXI Rule 58 of CPC and at paragraph No.18 held as follows:-
18. A reading of the above said provision gives a right to the person objecting the attachment of any property under the execution proceedings on the basis of its rights. When once such objections are filed, the executing Court may dismiss the said application at the initial stage if the property attached is alreadysold out or such objections are initiated to protect the proceedings. But, when the application is not dismissed on such ground, the execution Court in such situation is duty bound to hold enquiry by extending an opportunity to the parties by adducing the evidence to indicate their rights as extended in suit. The executing Court has to deal with all issues including questions relating to title etc. In order to determine the same, a duty is cast on the Court to conduct an enquiry, giving opportunity to the parties to adduce evidence and thereafter to proceed to adjudicate the matter in accordance with the said provisions since it has the effect of decree also.1
Judgment dated 05.01.2022 in A.S.No.59 of 2020 7
12. In K. Venkarayappa vs. Ellen Industries, Coimbatore and others2, the High Court of Andhra Pradesh while dealing with Order 21, Rule 58 of CPC held as under:
3. Order 21, Rule 58, C.P.C. gives a statutory and substantial right to a person to object to the attachment of any property in execution of a decree. When an application, in exercise thereof, has been filed, Clauses (a) and (b) of proviso to Sub-
rule (1) of Rule 58 clothes Court with power to dismiss such an application in limine, or (a) that the property attached had already been sold out; or (b) it was intended to protract the proceedings and in that process the application was designedly made or unnecessarily has been filed. If the Court exercises that power, the applicant is relegated to vindicate his rights by way of a regular suit as contemplated under Sub- rule (5) of Rule 58 of Order 21 thereof. If the Court did not exercise the power at its inception in terms of the above provisions, then Sub-rule (2) thereof enjoins the Court that all questions including the question relating the right, title or interest in the property attached shall be determined by that Court dealing with the claim or objection and not by a separate suit. Thereby, the Legislature intended that it is a mandatory duty cast on the court to hold an enquiry. The enquiry thereby posits that an opportunity to be given to the parties to adduce all necessary evidence in support of the claim or to resist such a claim by the opposite party and thereafter to give finality to the objection by that Court, subject to a right of appeal provided under Sub-rule (4) thereof treating the order thereunder as a decree. The order thus becomes conclusive. Thereby the Legislature has manifested that holding an enquiry in adjudicating the right title and interest of the objector in dealing with the claim or objection is mandatory and the order passed thereon shall be conclusive. Broached from this perspective, when we gleaned through the order passed, it must but be held that the lower Court passed the order under Sub-rule (2) of Rule 58 of Order 21, without holding an enquiry and without giving an opportunity to the Party. It straightway passed the order on merits. Therefore the order is per se contrary to the mandatory language and scheme of the Code; thereby it is not only in excess of the jurisdiction but also is vitiated by material irregularity in exercise of its jurisdiction. 2 1985 AIR AP 261 8
13. In M.s Southern Steelmet and Alloys Ltd., vs. B.M.Steel 3, a Division Bench of Madras High Court at held as follows:-
4........We have already expressed the view that the adjudication referred to under Order 21 Rule 58 C.P.Code not being summary and as it is the intention of the Legislature under the amended civil Procedure Code that it should be a decision as if rendered in a regular suit resulting in an appealable decree, we are of the view that a fuller examination of the rights of parties has to be held in the instant case after giving them adequate opportunity to place all relevant materials before the trial court, so that it could ultimately decide and adjudicate on all questions including questions relating to right, title or interest in the property attached which either directly or indirectly arise between the parties to the proceedings. This not having been done, we are constrained to set aside the order of the learned judge and remit the subject matter to the Original Side of this court for a fuller and detailed examination as contemplated under the amended provision and for an ultimate decision after adjudication of the rights of parties. To the above extent, the appeal is allowed. There will be no order as to costs.
14. Considering the principle laid down in the aforesaid judgments in Palla Chenchu Harikala (supra), the Division Bench of High Court of Andhra Pradesh held that Order 21, Rule 58 CPC deals with adjudication of claims or objections with regard to properties attached either directly or indirectly between the parties to the proceedings. The Division Bench found fault with the Executing Court in not following the procedure laid down under Order XXI rule 58 of CPC.
15. In the light of the aforesaid principle, coming to the facts of the present case, as discussed supra, learned Executing Court did not follow 3 AIR 1978 Mad 270 9 the said procedure and without granting an opportunity to the parties to lead evidence, dismissed the E.A.No.154 of 2023 filed by the petitioner to delete the aforesaid property from Execution Petition schedule properties.
16. Therefore, without going into the merits and demerits of the case, only on the said ground, the impugned order is set aside. The matter is remanded back to learned I Additional District Judge, Karimnagar, with a direction to decide E.A.No.154 of 2023 strictly in accordance with law by permitting appellant and respondent No.1 to lead evidence in support of their claim.
17. In view of the principle laid down by the Hon'ble Apex Court in Periyammal (dead Thr.Lrs.) v. Rajamani 4 and also considering the fact that EP is of the year 2022, learned Executing Court shall decide the aforesaid claim petition filed by the appellant vide E.A.No.154 of 2023 strictly in accordance with law, within two months from the date of receipt of a copy of this judgment. However, it is made clear that in respect of item Nos.1 and 3 of E.P. schedule properties, executing Court shall proceed further in accordance with law. Further, both the appellant and respondent No.1 shall cooperate with the Executing Court in 4 2025 INSC 329 10 disposing of E.A.No.154 of 2023 within the aforesaid timelines. Liberty is also granted to respondent No.1 to file counter in E.A.No.154 of 2023.
18. With the above findings/directions, this Appeal is disposed of. There shall be no orders as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE K.LAKSHMAN _____________________________________ JUSTICE B.R.MADHUSUDHAN RAO 31.03.2026 Dua/PLV