THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA CIVIL REVISION PETITION NO.684 OF 2019

ORDER:

This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order passed in I.A.No.367 of 2018 in O.S.No.187 of 2014 on the file of VII Additional District Judge, Khammam, wherein the respondent No.1 herein/plaintiff therein filed an application I.A.No.367 of 2018 under Order 38 Rule 5 read with section 151 of CPC for attachment of Suit Schedule Property before judgment which was acquired from Respondent/Defendant No.1 by way of gift deed in favour of Revision Petitioner.

2. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the trial Court as petitioner/plaintiff or respondent/defendant.

3. The brief facts of the case are that the plaintiff i.e. Respondent No.1 herein filed a suit for recovery of sum of Rs.15,19,559/- initially as against the respondent No.1/defendant No.1. During the pendency of the suit, an application was also filed by the respondent under Order 38 Rule 5 of the CPC seeking attachment of the said properties.

Subsequently, during the pendency of the suit, it is brought to the knowledge of the respondent/plaintiff that the said Suit Schedule Property was transferred in the name of the defendant No.2 who was proposed respondent No.2 herein, As such the petitioner has withdrawn the said application and filed present I.A.No.367 of 2018 seeking attachment of the petition schedule property which was said to have been transferred in the name of the respondent No.2.

4. The same was contested by the respondent/proposed defendant No.2 contending that the respondent No.2 is a third party and the attachment of property of the proposed defendant seeking attachment of petitioners schedule property against the proposed defendants is not maintainable and he further admitted that the respondent herein is the own brother of defendant No.1 and the other parties are the joint purchasers of the property through a registered document in the year 2010 and the respondent No.1/defendant No.1 has 16% undivided share only in the said purchased land and that out of love and affection the same was transferred by way of gift deed in favour of the proposed respondents and it is contended that as on the date of passing of the order, the respondent No.1/defendant No.1 is not the owner of the petitioner schedule property and as such attachment order cannot be maintainable as per law against the respondent.

5. It is further contended that Section 128 of T.P. Act is not applicable to the present petition as the main suit is pending and respondent No.1 has been contesting the suit, and that the present petition to attach the petition schedule property against the respondent No.2, who is still not a party to the suit proceedings, is not maintainable and prayed to dismiss the petition. So also, the respondent No.1/defendant No.1 filed a counter on similar lines and prayed to dismiss the petition.

6. The learned Judge on 12.04.2018, considering the third party affidavit filed and in view of the averments, that the subject gift was executed by D1 in favour of his own brother/D2 during the pendency of the suit in respect of the petition schedule property, upon which attachment was already ordered against D1, as such there was an ad-interim direction given to the proposed party/D2 not to alienate the petition schedule property until further orders, no doubt the present order which on the face of it was directing the respondent/defendant No.2 not to alienate the petition schedule property.

7. It is the contention of the learned counsel for the revision petitioner as he being a third party, the question of attachment of property under Order 38 Rule 5 cannot be made. In that case he is not liable to pay any amounts to the plaintiff. Admittedly, as on the said date of order of application the revision petitioner was a proposed party as application for impleading the petition also pendin