Gorusu Srinivasa Reddy, vs Sk. Mahabub Subhani,
2021 Latest Caselaw 2672 AP

Citation : 2021 Latest Caselaw 2672 AP
Judgement Date : 28 July, 2021

Andhra Pradesh High Court - Amravati

Gorusu Srinivasa Reddy, vs Sk. Mahabub Subhani, on 28 July, 2021

Bench: D Ramesh

             THE HONOURABLE SRI JUSTICE D.RAMESH

             CIVIL REVISION PETITION No.123 of 2021

ORDER:

The Petitioner herein is the 1st respondent/D.Hr in E.A.No.5 of

2020 in E.P.No.22/2014 in O.S.79/2006.

2. The present revision is filed aggrieved by the notice dated

07.01.2020 passed in E.A.5/2020 in E.P.No.22/2014 in O.S.79/2006

on the file of the Principal Senior Civil Judge, Anakapalle. The

petitioner filed O.S.79/2006 on the file of the Principal Senior Civil

Judge, Anakapalle against the respondent nos.3 and 4 herein for

recovery of an amount of Rs.5,42,000/- with subsequent interest

based on a mortgage. On careful consideration, the trial Court has

passed a preliminary decree on 17.10.2006 and when the

respondents failed to pay the decretal amount, a final decree was

passed on 28.12.2012. When the respondents failed to pay the said

final decree amount, the petitioner filed E.P.No.22/2014 praying the

Court below to order to sell the mortgaged property for realization of

the decretal amount. Auction for sale of the mortgaged property was

scheduled to be held on 13.12.2019. On the said date, the 1st and 2nd

respondents i.e. third party claim petitioners filed the petition under

Order 21 Rule 58 CPC. Initially the office has taken an objection and

the same was returned. But without deciding the liability of the claim

petition in a mortgage deed, the executing court entertained the claim

petition filed by 3rd parties and numbered as E.A.No.5/2020.

Aggrieved by the same, the present revision is filed.

3. Sri P.Rajasekhar, learned Counsel appearing on behalf of the

petitioner has stated that initially Court below has taken an objection

with regard to the maintainability and the same was adjourned on

DR,J CRP.No.123 of 2021

several occasions and without deciding the said issue straight away

numbered the E.A. and issued notice to the petitioner herein and the

same is contrary to Order XXI Rule 58 CPC and also to several

decisions of the High Courts. To support his contention, he mainly

relied on two decisions reported in T.Nabi Sab vs. G.Venkatesulu and

another1. Learned Counsel has strongly objected that the numbering

of E.A is contrary to Order XXI Rule 58 CPC which reads as follows:

Order 21 Rule 58 CPC:

"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".

4. To support his contention he relied on a decision as mentioned

above which held that the said provision is attracted only when an

attachment of any property which is attached in execution of a

decree. And the other judgment reported in between Indian Bank,

Nidadavole, Kovvur v. Nallam Veera Swamy and others2 in which it

was recited that:

The Madras High Court in MS Doraisami Iyer v. A.R.Arunachalam Chettiar (supra) and the Andhra Pradesh High Court in T.Nabi Sab v. G.Venkatesulu (supra), held that a claim petition under Order 21 Rule 58 is not maintainable in execution proceedings taken out in a mortgage decree.

M.S.Doraisami Iyer v. A.R.Arunachalam Chettiar (supra) "7........ The application is one under Order 21 Rule 58, CPC. NO such application can be maintained in a proceeding in execution of a mortgage decree. Rule 58 of Order 21, CPC can come into play only when there is an attachment. In the case of mortgage there is no question of attachment and in this case, there was no attachment as such. Consequently, the application was not maintainable".

T.Nabi Sab v. G.Venkatesulu (supra)

(2008) 4 ALD 770

(2015) 1 ALD 278

DR,J CRP.No.123 of 2021

"3....... The impugned orders of the Courts below do not call for any interference as the decree obtained by the 1st respondent against 2nd respondent was mortgage decree and the provisions of Order 21 Rule 58 CPC are not attracted.

4. Order 21 Rule 58 CPC states as follows:

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.

The above provision discloses that the said provision is attracted only where the claim is preferred, or objection is made to the attachment of any property which was attached in execution of a decree."

When a mortgage decree is passed, there is adjudication on the footing mat the property in question belongs to the mortgagor. Since no attachment is required for bringing to sale the mortgaged property, no claim petition under Rule 58 of Order XXI CPC would lie, though, in general terms the other provisions contained in Order XXI CPC would be applicable in execution of a mortgage decree, excepting Rules 58, 83 and 89 thereof. In execution of a mortgage decree, only the incorporeal right is brought to sale and not the physical property. In juxtaposition to this, in execution of a money decree the physical or the real property is brought to sale.

On perusal of the above said judgment and also as per

provision of Order XXI Rule 58 CPC clearly establishes that the

mortgage decree is passed and no attachment is required for sale in

bringing the mortgaged property and no claim petition under Order

XXI Rule 58 CPC would applicable.

5. Though notices were served on the respondents 1 to 4 but no

representation on behalf of respondents 1 and 2. Only on behalf of

respondents 3 and 4 filed Vakalat and the learned Counsel argued

that the court below has not decided any issue, only notices were

DR,J CRP.No.123 of 2021

issued and the petitioners herein are entitled to take similar

objections before the Court below with regard to maintainability