The decree holder must prove prior attachment of properties to challenge the competent authority's attachment under the APPDFE Act.

JUDGMENT :

TIRUMALA DEVI EADA, J.

This is an appeal filed by the appellant, being aggrieved by the order, dated 05.06.2018 passed in E.A.No.47 of 2008 in E.P.No.75 of 2007 under Order XXI Rule 58 read with Section 151 of the Code of Civil Procedure (for short “the CPC”) by the learned II Additional Chief Judge, City Civil Court at Hyderabad (for short “the trial Court”).

2. The appellant herein is the Decree Holder/plaintiff and respondent No.1 herein is the claim petitioner/third party before the trial Court. The parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.

3. The case of the claim petitioner/State represented through the competent authority/Additional Director General of Police, CID before the trial Court is that on 18.12.2002 on a complaint lodged by one Mohammed Raja against one Syed Taruj Ahmed, a case in Crime No.31 of 2002 was registered under Sections 120(B), 420, 409 of IPC and under Section 5 of the AP Protection of Depositors of Financial Establishments Act, 1999 (for short ‘APPDFE Act’). The CID police has investigated and filed charge sheet which was taken on file as C.C.No.06 of 2004 by the Metropolitan Sessions Judge, Nampally. Subsequently, a discharge petition filed by the accused was dismissed. During the course of trial, on an application made by the claim petitioner, the Metropolitan Sessions Judge has confirmed the attachment order passed by the Government dated 28.06.2003 as absolute, by order dated 03.11.2006. By virtue of the said orders, all the properties of the accused Syed Taruj Ahmed including the E.P. schedule property were attached. Thus, the EP schedule properties are under the control of the competent authority.

4. It is the further case of the claim petitioner that the plaintiff on learning about the pendency of these proceedings has approached the Metropolitan Sessions Judge through an application under Section 84(2) of Cr.P.C. vide SR No.6703 of 2004 praying to set aside the order of attachment in Crl.M.P.No.978 of 2003 which was returned as not maintainable. Aggrieved by the same, the plaintiff approached this Court vide Crl.P.No.7888 of 2007 and the same is pending. Thus, the claim petitioner has filed the present application under Order XXI Rule 58 of CPC stating that since the properties of J.Dr i.e. Syed Taruj Ahmed are already under attachment with the competent authority, the EP No.75 of 2007 claiming the sale of the suit schedule properties is not maintainable. Thus, they prayed to set aside the attachment over the schedule properties in E.P.No.75 of 2007.

5. The Decree Holder (D.Hr) filed a counter denying the petition averments and further contended that he is not aware of the complaint lodged against Syed Taruj Ahmed and that he has obtained attachment before judgment on 20.07.1999 in the suit filed by him i.e. O.S.No.304 of 1999 and that the order of attachment obtained by the petitioner is not valid. He further averred that the competent authority has no right to assume possession of properties and that aggrieved by the said orders of attachment, he has already approached the Metropolitan Sessions Judge and though his application filed under Section 84(2) of Cr.P.C. was returned, he has approached the High Court and that the matter is pending and that the High Court has granted stay in the said proceedings of Metropolitan Sessions Judge, he thus, prayed to dismiss the claim petition.

6. The claim petitioner has again filed a rejoinder stating that the Additional Director General of Police, CID was appointed as competent authority under Section 4(1) of the APPDFE Act vide G.O.Ms.No.193 HOME (General-B) Department, dated 23.08.2001 and that the D.Hr is having knowledge about the charge sheet filed by the police and also about the pendency of criminal proceedings before the Metropolitan Sessions Judge and that the attachment of property in O.S.No.304 of 1999 by this Court is not within the knowledge of the