Point of Law: 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.

JUDGMENT :

K. MANMADHA RAO, J.

1. The present appeal is filed against the Order and Decree dated 09.12.2019 in E.A. No. 32 of 2017 in E.P. No. 50 of 2013 in O.S. No. 98 of 2010 on the file of the learned I Additional District and Sessions Judge, Nellore (hereinafter referred to as the “Court below”).

2. The parties shall hereinafter be referred to as appellant/claim petitioner and respondents 1 to 4/D. Hrs and respondents 5 and 6/J. Drs 2 and 3.

3. The facts in brief are thus:

O.S. No. 98 of 2010 has been filed by the respondents 1 to 4 herein against one Pallala Bujjamma and respondents 5 and 6 herein for realization of the suit amount by redemption of mortgage passing a preliminary decree. The said suit was preliminarily decreed on 13.11.2011. Thereafter final decree was passed on 05.08.2013. As the defendants failed to comply the preliminary decree and final decree, the plaintiffs filed E.P. No. 50 of 2013 to sell the suit schedule property and realize the E.P. amount. In the pending E.P. the appellant herein i.e. third party filed E.A. No. 32 of 2017 under Order XXI, Rule 58, r/w Section 151 of C.P.C. The executing Court by the impugned order dismissed E.A. No. 32 of 2017.

4. E.A. No. 32 of 2017 has been filed by the appellant herein inter-alia stating that the claim petitioner is the daughter of late Arjunaiah @ Chenchaiah and 1st J. Dr (Bujjamma) and the sister of the respondents no. 2 and 3, who are the respondents no. 5 and 6/J. Drs before the Court below. The 1st J. Dr i.e. late Pallala Bujjamma died during pendency of E.P. No. 50 of 2013. During the life time of the father of the appellant, Pallala Arjunaiah @ Chenchaiah, he has purchased certain landed properties including the E.P. schedule property and died intestate on 15.12.2000 leaving behind him, his wife/1st J. Dr and his daughters i.e. the appellant and 3rd J. Dr and his son/2nd J. Dr as the legal heirs. Thus, by way of succession, the appellant and J. Drs 1 to 3 became the absolute owners of the estate of the deceased. As such, the appellant is entitled to 1/4th share in the properties of the deceased including the E.P. schedule property. The appellant filed a suit in O.S. No. 199 of 2009 on the file of the court of the I Additional Senior Civil Judge, Nellore against the respondents/J. Drs herein and others for partition, declaration and delivery of possession of her undivided share in joint family properties. The E.P. schedule property was shown as Item No. 2 in the plaint schedule in O.S. No. 199 of 2009.

5. J. Drs 1 to 3 without consent and knowledge of the appellant and concealing the claim of the appellant, as one of the members in the joint family, mortgaged the E.P. schedule property to the D. Hrs. The appellant is having 1/4th share in the E.P. schedule property and the suit for partition is also pending. Neither the J. Drs have right to mortgage the E.P. schedule property in favour of the D. Hrs/plaintiffs nor the D. Hrs/plaintiffs have right to sell the E.P. schedule property in public auction without dividing the share of the appellant pending disposal of the suit for partition. The appellant filed E.A. No. 1 of 2015 under Section 47 and 151 of C.P.C. and the same was dismissed, inspite of bringing to the notice of the executing court that the E.P. schedule property is shown as Item No. 2 in the plaint schedule in O.S. No. 199 of 2009 and that the appellant is not a party to the suit in O.S. No. 98 of 2010 and the execution proceedings are pending. The said suit in O.S. No. 199 of 2009 was decreed on 25.01.2018 by allotting the Item No. 2 and 3 of the suit schedule property to the appellant/claim petitioner and allotting the Item No. 1 to the share of the defendants 1 to 3 therein/J. Drs herein and the said defendants are directed to handover the possession of Item No. 2 and 3 to the appellant/plaintiff within two months etc. In view of the above decree, it is made clear that the appellant, who is one of the legal heirs of late Arjunaiah @ Chenchaiah an