Telangana High Court

M/S.Qadri Advertising Servicesp Ltd vs The State Through Competent Athority ... on 29 April, 2025

     THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA

           CITY CIVIL COURT APPEAL No.16 OF 2019

JUDGMENT:

This is an appeal filed by the appellant, being aggrieved by

the order, dated 05.06.2018 passed in E.A.No.47 of 2008 in

E.P.No.75 of 2007 under Order XXI Rule 58 read with Section 151

of the Code of Civil Procedure (for short "the CPC") by the learned

II Additional Chief Judge, City Civil Court at Hyderabad (for short

"the trial Court").

2. The appellant herein is the Decree Holder/plaintiff and

respondent No.1 herein is the claim petitioner/third party before

the trial Court. The parties herein are referred to as they were

arrayed in the suit before the trial Court for the sake of

convenience and clarity.

3. The case of the claim petitioner/State represented through

the competent authority/Additional Director General of Police,

CID before the trial Court is that on 18.12.2002 on a complaint

lodged by one Mohammed Raja against one Syed Taruj Ahmed, a

case in Crime No.31 of 2002 was registered under Sections

120(B), 420, 409 of IPC and under Section 5 of the AP Protection

of Depositors of Financial Establishments Act, 1999 (for short ETD,J CCCA No.16_2019

'APPDFE Act'). The CID police has investigated and filed charge

sheet which was taken on file as C.C.No.06 of 2004 by the

Metropolitan Sessions Judge, Nampally. Subsequently, a

discharge petition filed by the accused was dismissed. During the

course of trial, on an application made by the claim petitioner, the

Metropolitan Sessions Judge has confirmed the attachment order

passed by the Government dated 28.06.2003 as absolute, by

order dated 03.11.2006. By virtue of the said orders, all the

properties of the accused Syed Taruj Ahmed including the E.P.

schedule property were attached. Thus, the EP schedule

properties are under the control of the competent authority.

4. It is the further case of the claim petitioner that the plaintiff

on learning about the pendency of these proceedings has

approached the Metropolitan Sessions Judge through an

application under Section 84(2) of Cr.P.C. vide SR No.6703 of

2004 praying to set aside the order of attachment in

Crl.M.P.No.978 of 2003 which was returned as not maintainable.

Aggrieved by the same, the plaintiff approached this Court vide

Crl.P.No.7888 of 2007 and the same is pending. Thus, the claim

petitioner has filed the present application under Order XXI Rule

58 of CPC stating that since the properties of J.Dr i.e. Syed Taruj

Ahmed are already under attachment with the competent ETD,J CCCA No.16_2019

authority, the EP No.75 of 2007 claiming the sale of the suit

schedule properties is not maintainable. Thus, they prayed to set

aside the attachment over the schedule properties in E.P.No.75 of

2007.

5. The Decree Holder (D.Hr) filed a counter denying the

petition averments and further contended that he is not aware of

the complaint lodged against Syed Taruj Ahmed and that he has

obtained attachment before judgment on 20.07.1999 in the suit

filed by him i.e. O.S.No.304 of 1999 and that the order of

attachment obtained by the petitioner is not valid. He further

averred that the competent authority has no right to assume

possession of properties and that aggrieved by the said orders of

attachment, he has already approached the Metropolitan Sessions

Judge and though his application filed under Section 84(2) of

Cr.P.C. was returned, he has approached the High Court and that

the matter is pending and that the High Court has granted stay in

the said proceedings of Metropolitan Sessions Judge, he thus,

prayed to dismiss the claim petition.

6. The claim petitioner has again filed a rejoinder stating that

the Additional Director General of Police, CID was appointed as

competent authority under Section 4(1) of the APPDFE Act vide

G.O.Ms.No.193 HOME (General-B) Department, dated 23.08.2001 ETD,J CCCA No.16_2019

and that the D.Hr is having knowledge about the charge sheet

filed by the police and also about the pendency of criminal

proceedings before the Metropolitan Sessions Judge and that the

attachment of property in O.S.No.304 of 1999 by this Court is not

within the knowledge of the claim petitioner. It is further averred

by the claim petitioner that the petition schedule properties are in

the custody of the State from the date of ad-interim attachment

passed under Section 3 of APPDFE Act, 1999 vide G.O.Ms.No.176

HOME (General-B) Department dated 28.06.2003. It is further

averred that the D.Hr herein approached Metropolitan Sessions

Judge prior to filing of E.P.No.75 of 2007 and that the contention

of D.Hr that he is unaware of the proceedings is false and also

that the attachment order alleged to have been obtained in the

year 2006 also is false.

7. The trial Court framed the following point for consideration:

"Whether the claim petitioner is entitled for the relief of raising the attachment made over the E.P.Properties?"

8. Since it is a petition under Order XXI Rule 58 of CPC, the

evidence was adduced by both the parties. On behalf of the claim

petitioner, PW1 got examined and Exs.A1 to A5 were marked. On

behalf of the respondent/D.Hr, its Managing Director was

examined as RW1 but no documents were marked on their behalf.

ETD,J CCCA No.16_2019

9. Based on the evidence on record, the trial Court has allowed

the claim petition raising the attachment of EP Schedule

properties effected on 21.09.2007. Aggrieved by the said orders,

the present appeal is filed by the Decree Holder.

10. Heard the submissions of Sri V.Hari Haran, learned Senior

Counsel for the appellant and learned Government Pleader for

respondent No.1.

11. The learned Senior Counsel for the appellant has submitted

that the impugned orders are wholly untenable and unsustainable

in law and that the trial Court failed to appreciate the material on

record. He further argued that the I.A. filed by them under Order

38 Rule 5 of CPC vide I.A.No.1033 of 1999 in O.S.No.304 of 1999

dated 20.06.1999 was allowed and that the said Court has

attached the properties of the respondents at the time of

institution of suit itself, but the trial Court has committed an

error by holding that the said I.A. number is not mentioned and

that the certified copies of the said orders were not filed. He

further argued that he has mentioned all the details in the

counter and also in his written submissions on their behalf but

the trial Court failed to appreciate the same. He further argued

that the trial Court has erred in relying upon the attachment

effected by the Government on 28.06.2003 and further the ETD,J CCCA No.16_2019

attachment being made absolute on 21.09.2007. He further

submitted that the assertions made in the claim petition are

wholly untenable and thus, the trial Court ought to have

dismissed the claim petition. He therefore, prayed to set aside the

impugned orders dated 05.06.2018 by allowing this appeal.

12. The learned respondent counsel on the other hand has

submitted that the competent authority has attached the

properties vide G.O.Ms.No.176 dated 28.06.2003 following the

complaint lodged by one Mohammed Raja and that none of the

properties of J.Dr are available for attachment. Though, it is

alleged by the decree holder that they sought an attachment

before judgment on 20.07.1999, no document is produced in proof

of the said attachment and hence, the said contention cannot be

believed and that the attachment made by the government and

the orders of the Court making it absolute have to be considered

and that since the properties are already under attachment by the

competent authority, the D.Hr herein cannot seek further

attachment. He submitted that the trial Court was right in

allowing their claim petition and he, therefore, prayed to dismiss

the appeal.

13. Based on the above rival submissions, this Court frames the

following points for consideration:

ETD,J CCCA No.16_2019

1) Whether there was an order of attachment of properties in favour of the claim petitioner, prior to the filing of E.P.No.75 of 2007?

2) Whether the claim petitioner is entitled for the relief of raising the attachment made over the EP schedule properties?

3) Whether the order passed by the trial Court is sustainable in law and under the facts?

      4)    To what relief?


14.   POINT NOs.1 AND 2:

a)    A perusal of the record reveals that the G.O.Ms.No.176

HOME (General-B) Department dated 28.06.2003 was issued

making ad-interim attachment of the properties described in the

annexure. The schedule properties belong to Syed Taruj Ahmed

who is the accused under Sections 120B, 420, 409 of IPC and

Section 5 of the Act, thus, it is further revealed that in a petition

filed under Section 4(3) of APPDFE Act, the Court of Metropolitan

Sessions Judge, Hyderabad has made the said attachment

absolute vide its orders dated 03.11.2006.

b) The evidence of PW1 before the trial Court reveals that, he

has reiterated the contents of his claim petition in his chief

affidavit and nothing material could be elicited in his cross

examination to discredit his evidence with regard to the ETD,J CCCA No.16_2019

attachment of properties being made absolute by the Metropolitan

Sessions Judge vide orders dated 03.11.2006 vide Crl.Petition

No.978 of 2003. In his cross examination. He admitted that they

obtained the attachment order from Metropolitan Sessions Judge,

without serving notice on D.Hr but it is elicited from him that they

have issued publication in newspaper when they obtained

attachment orders from the Metropolitan Sessions Judge and that

they issued notice to the persons in possession of the property

inviting objections if any. As D.Hr is no way connected to the

case, they could not serve notice on him and that the D.Hr is not

a depositor in the said case.

c) Thus, though it is contended by the decree holder that no

notice was issued on him while the competent authority has

obtained the attachment order of the property, it is clearly elicited

from the claim petitioner that since decree holder was not at all

connected with the case he was not issued notice. Therefore, the

said contention of the decree holder is untenable.

d) The decree holder got examined RW1. In his cross

examination, he admitted that the J.Dr./Syed Taruj Ahmed

obtained huge amounts from innocent and poor people and that

he is liable to make payments to them.

ETD,J CCCA No.16_2019

e) Exs.P1 and P2 refers to First Information Report in Crime

No.31 of 2002 and the charge sheet filed by the police. Thus, it is

elicited through the evidence on record that there was a case filed

by the competent authority against Syed Taruj Ahmed and it is

also evident that the Government issued G.O.Ms.No.176, dated

28.06.2003 passing an ad-interim order for attachment of

properties pertaining to the said accused who is alleged to have

committed the offence of cheating the innocent public and

collecting amounts from them. The said attachment was made

absolute vide orders dated 03.11.2006 passed by the Metropolitan

Sessions Judge in Crl.M.P.No.978 of 2003.

f) The contention of the appellant is that the plaintiff obtained

an attachment before judgment order vide I.A.No.1033 of 1999 in

O.S.No.304 of 1999 on 20.06.1999 and that he filed copy of the

said orders before the trial Court. However, while submitting the

arguments he has produced a copy stating that it is the order of

attachment before judgment obtained by him in O.S.No.304 of

1999.

g) A perusal of the said document reveals that it is the notice

issued to the J.Dr prior to passing the orders of attachment before

judgment asking J.Dr to furnish security. The said order is

extracted hereunder for the sake of clarity:

ETD,J CCCA No.16_2019

"Whereas on the application of the petitioner/plaintiff in this suit, you the above named Respondents are hereby called upon to furnish security for a sum of Rs.7,00,000/- within Three days from the date of service of this notice to fulfill any decree that may be passed against you in the suit, and on your failure to furnish such security within the time fixed by this Court.

It is ordered that you the said Respondents be, and you are hereby prohibited and restrained until the further order of the Court from transferring, or charging the properties described in the schedule hereto annexed, by sale, gift or otherwise and that all persons be, and that they are hereby prohibited and restrained from receiving the same by purchase, gift or otherwise."

Thus, the said orders dated 20.07.1999 do not reflect any

orders of attachment before judgment. It is the notice issued to

the J.Dr seeking to furnish security.

h) It is pertinent to refer to Order XXXVIII Rule 5(1) of CPC in

this context and the same is extracted hereunder:

"5. Where defendant may be called upon to furnish security for production of property.--(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,--

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. ..........."

i) Therefore, that does not amount to the attachment of the

properties mentioned therein. Thus, the contention of the

appellant that he has obtained the attachment order prior to

G.O.Ms.No.176 is not proved. If any property needs to be attach ETD,J CCCA No.16_2019

under Order XXXVIII Rule 5, it is essential that the requirement

under sub Rule (1) has to be satisfied and then if the J.Dr fails to

furnish any security within the stipulated period of time, an order

making attachment of property has to be passed under Rule 6 of

Order 38 which is not done in the present case.

j) The judgment in O.S.No.304 of 1999 also does not speak

about any such attachment order passed by it. Therefore, the

appellant could not prove his case that he has obtained an

attachment order prior to the issuance of G.O.Ms.No.176.

Further, the competent authority could prove that it has issued

G.O.Ms.No.176 on 28.06.2003 and that it was made absolute vide

orders in Crl.M.P.No.978 of 2003 dated 03.11.2006 and thus, the

claim petition filed by him in E.A.No.47 of 2008 succeeds and the

competent authority is entitled for the relief of raising the

attachment made in EP No.75 of 2007. Point Nos.1 and 2 are

answered accordingly.

15. POINT NO.3:

In view of the reasoned findings arrived at Point Nos.1 and

2, it is held that the orders passed by the Trial Court in E.A.No.47

of 2008 and in E.P.No.75 of 2007 do not need any interference

and the same are held to be sustainable in law and under the

facts and circumstances of the case.

ETD,J CCCA No.16_2019

16. POINT NO.4:

In the result, the appeal is dismissed upholding the order,

dated 05.06.2018 passed in E.A.No.47 of 2008 in E.P.No.75 of

2007 by the learned II Additional Chief Judge, City Civil Court at

Hyderabad. No costs.