JUDGMENT:

The present is a Civil miscellaneous Second Appeal, filed under Section 100 of Code of Civil Procedure (for short ‘CPC’) by the appellant/respondent No.3 against the orders, dated 03.06.2013 in A.S.No.1 of 2012 on the file of I Additional District Judge, Khammam, whereunder the appeal filed by respondents/claim petitioners was allowed.

2. For the sake of convenience, the parties will be referred to as claim petitioners, decree holder (for short ‘DHR’), judgment debtor (for short ‘JDR’) and auction purchaser.

3. Before adverting to the contentions of both parties, it is required to mention the previous history of the litigation. One Mohammed Moinuddin who is shown as respondent No.4 in the present appeal who will be referred as DHR hereinafter filed a suit in O.S.No.61 of 2001 against respondent No.5 herein before Senior Civil Judge, Khammam for recovery of money and obtained a decree in his favour on 18.01.2011. It was an exparte decree as respondent No.5/judgment debtor did not choose to contest the suit. DHR filed a petition for execution of the said decree vide E.P.No.91 of 2003. Respondent Nos.1 to 3 herein have filed petition under Order 21 Rule 58 CPC vide E.A.No.484 of 2003 claiming right over the E.P. schedule properties. The basis for the said claim is a decree obtained by them in a partition suit vide O.S.No.327 of 2003 on the file of the same Court i.e., Senior Civil Judge, Khammam. Respondent Nos.1 to 3 have claimed that the property sought to be sold in execution was their ancestral property and they have got ¼ share each and respondent No.5 has got ¼ share as such they filed claim petition. It seems from the record that the said interlocutory application was once dismissed for default, and later restored. But, in the meanwhile the execution Court proceeded with the execution petition and the property was sold in public auction and the present appellant has purchased the property. The fact remains that the auction was conducted during the pendency of execution application filed by the claim petitioners (respondent Nos.1 to 3 herein.

4. The claim petition was dismissed by the execution Court on 18.01.2011. However, the appeal filed by the claim petitioners was allowed by I Additional District Court under the impugned order, darted 03.06.2013. The learned I Additional District Judge, having appreciated the arguments advanced by the respondents Nos.1 to 3 allowed the appeal under the impugned order. Being aggrieved by the said order the auction purchaser filed the present appeal by formulating two (2) substantial questions of law which are extracted hereunder:

1. Whether the judgment and decree of the appellate Court, reversing that of the trial Court basing on a decree in a partition suit among respondent Nos.1 to 3 and 5 could be sustained when the decree holder or the auction purchaser are not parties to the said suit?

2. Whether the judgment and decree in the partition suit O.S.No.327 of 2003 dated 16.06.2004 on the file of the Court of Senior Civil Judge, Khammam are biding upon the auction purchaser in E.P.No.91 of 2003 in O.S.No.61 of 2001 on the file of the Court of Senior Civil Judge, Khammam?

5. In order to give an effectual disposal to the present second appeal, certain dates are crucial. There is no dispute about the relationship between respondent Nos.1 to 3 and 5. There is no dispute about respondent No.4 obtaining money decree against respondent No.5. Similarly, there is no dispute about the partition suit filed by respondent Nos.1 to 3 against respondent No.5 and obtaining a decree in their favour. It may be true the decree holder has claimed that respondent no.5 has obtained an amount of Rs.2,00,000/- from him under two (2) promissory notes on 08.09.1999 and the 1st respondent herein has attested the said promissory notes. DHR has further claimed before the execution Court that since respondent No.1 attested the promissory notes, the claimants have got knowledge about the debt, and they have fil