A claim petition under Order 38 Rule 8 C. P. C. can be entertained during the subsistence of attachment, even after an order for release of property from attachment is passed in a revision petition, if the claim petition was filed before the disposal of the revision petition. The court has a duty to adjudicate upon the claim petition under Order 38 Rule 8 C. P. C.

IMMANENI PANDURANGA RAO, J.

( 1 ) THIS petition is filed to review the order dt: 26-3-93 passed in C. M. P. No. 5465 of 1993 on the ground that the order is vitiated by an error apparent on the face of the record.

( 2 ) THE learned Advocate-General appearing for the review petitioner argued that the review petitioner who is the defendant in the suit has denied the execution of the promissory note on behalf of himself and as manager of the joint family; that the said promissory note was concocted at the instance of one dr. Shyamala Devi and her husband Sri S. Krishnama Naidu, a former Additional public Prosecutor, Chittoor; that the attachment before judgment was ordered contrary to the provisions of law on 31-12-1992; that the attachment was effected and the attached property was removed and carried away; that when once the third-party security was furnished by the revision petitioner in pursuance of the decision of this court dt: 17-3-1993 in C. R. P. No. 783 of 1993 the attachment is raised and, that therefore,the subsequent order in C. M. P. No. 5465 of 1993 is illegal and is liable to be reviewed.

( 3 ) RELYING upon a Division Bench decision of our High Court in p. Satyanarayana vs. P. Somasundaram, which held that Order 21 Rule 58 C. P. C. contemplates of a subsisting attachment at the time of the application and during the proceedings until the order releasing the property from attachment is made and that an application under Order 21 Rule 58 C. P. C. does not lie when once the sale is held, the learned Advocate-General argued that when the attachment in respect of the property seized from the possession of the petitioner has been raised, the alleged claimant has to work out his rights in a suit, but, not in a claim petition and that when once the security is furnished as ordered by this court on 17-3-93 in C. R. P. No. 783 of 1993, the attachment does not subsist and, therefore, the learned Subordinate Judge has no right or jurisdiction to entertain the claim petition.

( 4 ) THE above contention is perfectly correct if the claim petition by the 1st respondent has not been filed before the C. R. P. No. 783 of 1993 was disposed of on 17-3-93. While disposing of C. R. P. No. 783 of 1993, the learned counsel for the 2nd respondent (plaintiff) brought to my notice about the pendency of I. A. No. 18 of 1993 with regard to the same property and the learned Subordinate Judge was directed to dispose of the same expeditiously. It follows, therefore, that i. A. No. 18 of 1993 for raising the attachment was filed during the subsistence of attachment, but, not after the attachment ceased to exist.

( 5 ) IT is significant to note that while filing C. R. P. No. 783 of 1993, the petitioner therein, who is the petitioner in this petition also, did not bring to the notice of this court about the filing of a claim petition by the 1st respondent herein. When once the claim petition is pending, the claim petitioner will have the right or interest in the property which was attached and, therefore, the claim petitioner is a person interested in the subject-matter of the suit and the C. R. P. It is only after dictating the order in the C. R. P. that the learned counsel for the plaintiff brought to my notice about the pendency of I. A. No. 18 of 1993 with regard to the same property and the learned Subordinate Judge was directed to dispose of the same expeditiously. Thereafter when the claim petitioner filed C. M. P. No. 5465 of 1993 for setting aside the order passed in C. R. P. No. 783 of 1993 on the ground that the order was obtained surreptitiously behind his back without impleading him in the C. R. P. in order to safeguard the interests of the claim petitioner it was directed that the attached property, if not already released in favour of the revision petitioner, shall not be released pending disposal of I. A. No. 18 of 1993 with a further direction to the learned Subordinate Judge to dispose of I. A. No. 18 of 1993 within two weeks from t

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