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2002 Supreme(AP) 335

Andhra Pradesh High Court
M.A.Rasheed - Appellant
Versus
T.S.Mahaboob Basha - Respondent
CRP.No.242/2001
Decided On : 03-01-02
Advocates Appeared :
Mr.Mohd. Ghulam Hussain,Mr.K.V.Chalapathi Rao

Headnote:CIVIL PROCEDURE CODE, Secs151 & 153 - Or6, R17 - Or21, R17 & 64 and Or38, R5 - Pending suit plaintiff got attached house of defendant before judgment - In execution proceedings defendant’s brother filed claim petition and attachment of southern portion of EP schedule property was raised - When JDR raised objection, for bringing attached property to sale, DHR filing petition seeking amendment of EP schedule property by deleting southern portion - Executing court allowing amendment - Contention that petition for amendment of EP not maintainable since provisions either under Or6, R17 or Or21, R64 not applicable

G. ROHINI, J.

( 1 ) THIS Civil Revision Petition arises out of execution proceedings in furtherance of a money decree obtained by the respondent herein.

( 2 ) THE judgment-debtors in E. P. No. 39 of 1997 are the petitioners in this Revision petition which is directed against the order dated 14-11-2000 made in E. A. No. 56 of 2000 in E. P. No. 39 of 1997 on the file of the court of the VII Senior Civil Judge, hyderabad permitting the decree holder to amend the schedule to the Execution petition.

( 3 ) THE facts/ which are not in dispute and relevant for the purpose of determination of the question raised in this Revision Petition, are as follows: the respondent herein filed OS. No. 111 of 1993 on the file of the Court of the principal Subordinate Judge, Kurnool against the petitioners herein for recovery of rs. 8,17,990/- and the. same was decreed on 14-11-1996. Pending the said suit, the plaintiff filed LA. No. 308 of 1993 under order 38, Rule 5 of CPC and got attached a house of the defendants before judgment. After the suit was decreed the plaintiff- decreeholder got the decree transferred to court of the VII Senior Civil Judge, City civil Court, Hyderabad and filed E. P. No. 39 of 1997 seeking sale of the house property of the judgment-debtors which was attached pending the suit.

( 4 ) WHILE so, the younger brother of the judgment-debtor No. 1, one MA. Majeed filed a claim petition, E. A. No. 66 of 1997 contending that he is the owner of the southern portion of the E. P. Schedule property admeasuring 166 Sq. yards. According to him he got the said portion by way of partition, and therefore, sought to raise the attachment in respect of the said southern portion of the E. P. Schedule property. The said E. A. No. 66 of 1997, after due enquiry, was allowed by order dated 22-2-2000 and the attachment of the southern portion of the EP Schedule property was raised. The sister of judgment- debtor No. l by name Rafiqunnisa also filed another claim petition. E. A. No,68 of 1997 claiming ownership in respect of northern portion of the suit schedule property admeasuring 154 Sq. yards alleged to be gifted to her under a gift deed dated 8-6-1992. However, the said E. A. No. 68 of 1997 was dismissed by order dated 22-2-2000 and the said order has become final. Thereafter the decreeholder pressed for further proceedings in the Execution petition by bringing the attached property to sale. The judgment-debtors raised an objection stating that in view of the fact that the attachment of southern portion of the property was raised, the E. P. schedule property cannot be brought to sale. In the circumstances, the decree holder filed E. A. No. 56 of 2000 seeking amendment of the e. P. schedule property by deleting the southern portion of the schedule property in respect of which the attachment was raised by the Court by order dated 22-2-2000 in e. A. No. 66 of 1997. The said application was contested by the judgment-debtors stating that the application is not maintainable.

( 5 ) THE court below by order dated 14-11-2000 allowed E. A. No. 56 of 2000 holding that the objection raised by the judgment-debtors is not tenable. Aggrieved by the said order the judgment debtors have come up with the present Civil Revision Petition.

( 6 ) HEARD the learned counsel for the petitioners as well as the learned counsel for the respondent.

( 7 ) THE learned counsel for the petitioners mainly contends that the petition for amendment of Execution Petition is not maintainable since the provisions either under Order 6 Rule 17 or Order 21 Rule 64 of CPC are not applicable. Therefore, according to the learned counsel for the petitioners the court below has no jurisdiction to allow amendment of execution Petition and the order under revision is liable to be set aside. The learned counsel for the respondent (sic. petitioners) submits that the only course available to the decreeholder is to file a fresh Execution Petition.

( 8 ) ON the other hand the learned counsel for th









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