THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL REVISION PETITION No.218 of 2021

ORDER:

This Civil Revision Petition is filed by the petitioner/claim petitioner assailing the order dated 29.09.2020 in E.A.S.R.No.1849 of 2016 in E.P.No.12 of 2015 in O.S.No.13 of 2005 passed by the learned V Additional District Judge, Kothagudem.

2. Heard learned counsel for the petitioner/claim petitioner and learned counsel for respondent No.1. Notice sent to respondent No.2 returned unserved with an endorsement insufficient address.

Perused the record.

3. The brief facts of the case in a nutshell are that the petitioner herein filed an application under Order XXI Rule 58 of CPC, seeking to declare the claim petitioner as one of the share holders of the E.P. schedule property. Admittedly, the E.P.No.12 of 2015 was filed by the respondent No.1/decree holder herein, seeking relief under Order XXI Rule 32 of CPC, seeking a direction to Judgment-Debtor to execute a regular sale deed in favour of decree-holder/plaintiff at his costs, after measuring the property, failing which the decree-holder will execute the registered sale

deed through process of this Court after getting E.P. schedule property measured. The said E.P. was heard on merits and the same was allowed and proceeded with execution of registered sale deed

in favour of decree-holder through process of law.

4. Pending E.P., the said claim petition was heard by the trial Court at the stage of E.A.S.R. on ground that the E.A.S.R is maintainable, the very E.P. itself was not filed for any attachment nor attachment of property was sought for. The learned Judge, after considering the entire material i.e., petition and counter and contentions of both the parties and also considering the same has framed the issue “whether the claim petition under Order XXI Rule 58 of CPC is maintainable in respect of decree for Specific Performance of agreement of sale?”. Having gone into the entire material and also considering the decisions rendered by this Court cited by the same petitioner before the trial Court in “Achi Ramulu (died) and another Vs. Kunapareddy Vijay Kumar (died), 2008 (1) ALD 765 and Arif Abdul Ghani and others vs S.Maheswar Rao and others² “According to proviso of Sub Rule 1 of rule 58 of Order XXI of CPC, the executing court may refuse to entertain claim petition, if where

2 1999 (4) ALD 300

the court considers that the claim or objection was designedly or unnecessarily delayed. It is already stated supra that attachment of property does not arises in execution of the decree for specific performance of contract of sale. Unless there is such attachment, claim petition under order 21 rule 58 of CPC is not maintainable. In the instant case, R.1 obtained decree for Specific Performance of contract of sale against R.2 herein in OS No.13/2005 and when R.2 did not come forward to get execute regular registered sale deed in favour of R.1, Respondent No.1 had filed an E.P No.12/2015, seeking to get execute regular registered sale deed in her favour through process of the court. Since, the decree is specific performance of contract of sale, no contingency for attachment would arises and therefore there was no attachment of the E.P. Schedule property, then no petition can be filed under order 21 rule 58 of CPC and therefore the present claim petition is not maintainable and liable to be rejected.

Considering the above proviso of Sub-Rule 1 of Rule 58 of Order XXI of CPC, rejected the claim petition as not maintainable.

5. Admittedly, the suit was filed, seeking relief of specific performance in the said decree against which E.P.No.12 of 2015 was filed under Order XXI Rule 32 of CPC seeking a direction to Judgment Debtor to execute regular sale deed, pending the same, the petitioner herein, who is said to be the daughter of the Late Narsa Goud, who is Kartha of joint family and she is claiming that she filed a suit in O.S.No.4 of 2015 on the file of V Additional District Judge, Kothagudem, against her b