Possession at the time of attachment is critical for claims; ex-parte decrees obtained collusively are not binding on decree holders.

JUDGMENT :

Dr. G. Radha Rani, J.

1. This Appeal Suit is filed by the appellants - respondents - D.Hrs. aggrieved by the order in E.A.No.197 of 2019 in E.P.No.163 of 2016 on the file of the II Additional District Judge, Rangareddy District at L.B.Nagar in Dispute No.346 of 2012 dated 17.11.2023.

2. The brief facts of the case are that the respondent No.1 - Chit Fund Company filed an arbitration case being Dispute No.346 of 2012 before the Deputy Registrar of Chits / Arbitrator, Rangareddy District (West) seeking to recover an amount of Rs.16,41,060/- against respondents 2 to 6 herein. After hearing the matter, an award was passed by the Deputy Registrar of Chits / Arbitrator on 24.08.2013. Pending the above Dispute No.346 of 2012 before the Deputy Registrar, the respondent No.1 filed an application being I.A.No.78 of 2013 seeking attachment of the EP schedule property and the same was allowed by attaching the immovable property of the respondent No.4 - J.Dr. No.3 herein. Subsequently, for execution of the award passed in Dispute No.346 of 2012, the respondent No.1 herein filed an Execution Petition being E.P.No.163 of 2016 seeking sale of EP schedule property, which was already attached in I.A.No.78 of 2013 before the learned Arbitrator - Deputy Registrar of Rangareddy District (West). At the stage of proclamation, the petitioners - appellants herein filed a claim petition being E.A.No.197 of 2019 in E.P.No.163 of 2016 claiming the EP schedule property. After hearing the matter, E.A.No.197 of 2019 was dismissed by the II Additional District Judge, Rangareddy District by order dated 17.11.2023. Challenging the said order, the present appeal is preferred by the petitioners - appellants herein.

3. Heard Sri Vedula Srinivas, learned Senior Counsel representing Ms.Vedula Chitralekha, learned counsel for the appellants on record and Sri P.Durga Prasad, the learned Senior Counsel for the respondent No.1.

4. Learned Senior Counsel for the appellants submitted that the father of the claim petitioners 1 and 2 late Raj Mohammed was the pattedar and possessor of the land in Survey No.334 admeasuring Ac.1-13 guntas and some other ancestral lands of Gunthapally Village, Hayathnagar Mandal, Rangareddy District. The claim petitioners 1 and 2 and their brother late Akther Pasha, who was the husband of claim petitioner No.3 and father of claim petitioner No.4 (J.Dr. No.3) had requested their father to give land in Survey No.334 admeasuring Ac.1-13 guntas for constructing poultry farm. Their father out of natural love and affection orally gifted the above land to his sons on 10.01.2004 and delivered possession of the above land to them. Subsequently on 15.06.2004, he executed a memorandum of oral gift in token of the earlier oral gift. The claim petitioners 1 and 2 and their brother late Akther Pasha took possession of the above land and constructed poultry farm on some area and the remaining area was being used for agricultural purposes. They were running poultry farm in the above land. The donor being the father of the claim petitioners 1 and 2, therefore, they had not taken any steps for mutation and still the name of their father was continuing in the revenue records. In the last week of February, 2017, the claim petitioners came to know that an area of Ac.1-00 guntas out of Ac.1-13 guntas in Survey No.334 was under attachment by the Court in E.P.No.163 of 2016 and in the schedule of EP, the Ac-1-00 guntas land in the above Survey Number was shown as property for attachment and sale. The claim petitioners obtained EC from the office of Sub-Registrar, Abdullapur on 25.02.2017 and came to know that their father executed a registered gift deed document No.296 of 2010 dated 02.03.2010 in favor of J.Dr. No.3. The claim petitioners surprised by knowing the said fact enquired with their father about the execution of the gift deed. Then, their father informed that J.Dr. No.3 few years back had informed him that he want to take loan from the bank for doing