J U D G E M E N T

The appellants are decree holders. Originally, they have filed the suit in O.S.No.3211 of 1984 for maintenance and they obtained a decree on 09.02.1995. Therefore, in the execution proceedings, they attached the suit property. After decree in the said execution proceedings, they filed the execution petition in E.P.No.188 of 1989 and the said property was brought on sale to realize the decreetal amount. At that time, the respondents herein filed an application in E.A.No.512 of 1993 under Order 21 Rule 58 C.P.C., claiming that the judgment debtor is not entitled to the entire property and therefore, attachment of the entire property will not bind them. Further, they have stated in the claim petition that the suit property originally belonged to the father of the judgment debtor and the respondents, one Govindha Reddy. The said Govindha Reddy has got seven legal heirs and therefore, each of them are entitled to 1/7th share in the said property, whereas, the entire property and share of the other shareholders also were attached. Therefore, attachment in respect of 6/7 shares has to be raised and the said petition was dismissed by the Executing Court. Challenging the same, the respondents filed an appeal before Subordinate Judge, Poonamallee in C.M.A.No.26 of 1995. The learned Subordinate Judge after hearing the appeal and considering the materials available on record, allowed the appeal and attachment was raised in respect of 6/7 share. Now, challenging the raising of attachment, the decree holders have filed the present second appeal.

2. While admitting the Civil Miscellaneous Second Appeal on

20.05.1997, this Court has formulated the following substantial questions of law:

i. Whether the lower court is right in allowing the claim petition when the claimants have not filed any documents to show that their interest as on the date of attachment?

ii. Whether the lower appellate court is right in relying upon the only document Ex.P1 of the year 1961 when other documents for joint enjoyment, patta, adangal, kist receipts could have been produced by the claimants?

Iii. Whether the lower appellate court is right in allowing the claim petition when the claimants did not adduce any evidence to show their interest on the date of attachment?

3. The learned counsel for the appellants submitted that the appellants filed the suit for maintenance and a sum of Rs.300/- was ordered as maintenance amount and the same was not paid by the husband of the first appellant. Hence, the property was attached and the same was brought on sale. At the time, the respondents have filed a claim petition under Order 21 Rule 17 C.P.C., and executing court dismissed the same and hence challenging the same, the respondents filed an appeal before the first appellate court. The first appellate court allowed the appeal holding that the decree holders are entitled to bring the property for sale with respect of 1/7 share, since the judgment debtor is entitled to

1/7 share in the suit property. Other legal heirs of Govindha Reddy are also entitled to 6/7 share. Therefore, attachment to that effect is set aside and the attachment was raised by the First Appellate Court. Challenging the same, the present Civil Miscellaneous Second appeal is filed by the appellants.

4. Learned counsel for the appellants further submitted that they have not produced any other document, except the title deed in respect of the property in question. It has to be ascertained first as to whether all the other respondents are in possession of the property? The judgement debtor alone was in possession of the property? At the time of attachment, the respondents have not raised any objections or even till filing of the Execution petition, till the property was brought on sale. Only in order to protract or obstruct the decree obtained by the decree holder, they have filed the petition belatedly only at the time when the property was brought on sale. The poor lady with infant child could not