An application under Order 38 Rule 8 CPC is not maintainable after disposal of the suit. The remedy of a third party in such a case lies in filing an application under Order XXI Rule 58 CPC.

JUDGMENT

B.S. Bhanumathi, J. - Questioning the orders, dated 13.07.2011, passed in I.A. No. 66 of 2006 in I.A. No. 102 of 2005 in O.S. No. 90 of 2005 on the file of the Court of II Additional Senior Civil Judge, Kakinada, filed under Order 38 Rule 8 of CPC, the appellant/1st respondent/plaintiff initially preferred CMA 1400 of 2011 before this Court. On the objection raised by the respondents as regards the maintainability of the appeal, the appellant filed a petition in C.M.A.M.P. No. 1737 of 2012 to convert the CMA into first appeal. Accordingly, by order, dated 11.09.2012, the said petition was allowed and the civil miscellaneous appeal was converted into a first appeal.

2. Whereas, the respondents/claimants/3rd parties preferred Cross objections No. 6715 of 2012 against the order, dated 11.09.2012, insofar as it relates to the findings on point No. 1.

3. Heard Sri T.V.S. Prabhakara Rao, learned counsel for the appellant and Sri K. Someswara Kumar, learned counsel for the respondents. Though Cross Objections No. 6715 of 2012 have been filed by the third parties, there is no appearance on their behalf.

4. The facts to the extent relevant, in brief, are as follows:

The appellant is the 1st respondent/plaintiff. The respondents 1 & 2 herein are the claimants/3rd parties to the suit. The 3rd respondent herein is the 2nd respondent/defendant. Respondents 1 & 2 herein are the residents of Parvathipuram. They are the sons of the 3rd respondent. Plaint 'A' schedule properties are the self acquired properties of the 3rd respondent. Later, out of love and affection, he executed a registered gift deed, dated 23.03.2005 in favour of the respondents 1 & 2 and delivered possession of the said properties to them. Thus, the respondents 1 & 2 have become lawful owners of the said properties. Plaint 'B' and 'C' schedule properties are the self acquired properties of their paternal grandfather, late Tadi Satyanarayana Reddy, executed a Will, dated 14.04.2004, in a sound and disposing state of mind, bequeathing the properties covered by 'B' and 'C' schedules in favour of the respondents 1 & 2. Thus, they became lawful owners of the petition A, B and C schedule properties. They learnt that the petition A, B and C schedule properties were attached by the appellant/plaintiff in the above suit due to which the respondents 1 & 2 are unable to dispose of the same for pursuing higher education.

5. The 3rd respondent/2nd respondent/defendant has not filed any counter.

6. The appellant/1st respondent/plaintiff filed counter denying the allegations and contending that as the 3rd respondent/defendant, who is no other than the father of the 1st and 2nd respondents/claimants 1 & 2, failed to repay the appellant Rs. 5,00,000/- borrowed on 03.03.2003 under a pronote and the petition schedule properties were got attached on 14.03.2005, in the suit filed against him, but having come to know it, the 3rd respondent executed a registered gift-cum-settlement deed in favour of his sons in respect of the petition 'A' schedule property with a view to defeat the suit claim and that the Will, dated 14.04.2004, is collusively fabricated by them in respect of petition 'B' and 'C' schedule properties, created only for the purpose of this petition and hence, the same is liable to be dismissed with exemplary costs.

7. On the basis of the above pleadings, the trial Court framed the following points for consideration:

1. Whether the Will, dated 14.04.2004 relied on by the petitioners is genuine and as such attachment over the petition B and C schedule properties is liable to be raised?

2. Whether the attachment on the petition 'A' schedule property is valid in view of the gift deed, dt. 23.3.2005 executed by the 2nd respondent in favour of the petitioners?

3. Whether the petitioners are entitled for raising attachment over the petition A, B and C schedule properties as prayed for?

4. To what relief?

Before the trial Court, on behalf of the plaintiff, PWs 1 to 3 were examined and exhibits