Under Order XXI Rule 58 of the CPC, an Executing Court is legally mandated to hold a formal inquiry and provide parties an opportunity to adduce evidence for adjudicating claims of 'right, title, or interest' in attached properties; failure to do so is a material procedural irregularity.

JUDGMENT

(per the Hon’ble Sri Justice K.LAKSHMAN)

1. Heard Sri R.A.Chary, learned counsel for the appellant, Sri Damodar Mundra, learned counsel for the respondent No.1 and Sri Bethi Venkateswarlu, learned counsel for the respondent No.2.

2. This Appeal is preferred under Section 96 of CPC, challenging the order dated 22.12.2025 in E.A.No.154 of 2023 in E.P.No.11 of 2022 in O.S.No.211 of 2014, passed by the learned I Additional District Judge, Karimnagar.

3. Respondent No.1 – plaintiff has filed a suit in O.S.No.211 of 2014 initially against respondent No.2 – defendant No.1 for recovery of an amount of Rs.1,46,02,083/-. Along with the said suit, respondent No.1 - plaintiff has also filed an Interlocutory Application vide I.A.No.825 of 2014 under Order XXXVIII Rule 5 of CPC seeking attachment before judgment. The same was ordered on 31.12.2015 attaching the properties mentioned therein including item No.2 of the EP schedule property.

4. Thereafter, learned Trial Court decreed the said suit on 02.03.2021 directing respondent No.2 – defendant No.1 to pay an amount of Rs.1,46,02,083/- with subsequent interest at the rate of 6% per annum from the date of suit till the date of realization. However, suit against appellant herein – defendant No.2 was dismissed.

5. Respondent No.1 – decree holder has filed an Execution Petition vide E.P.No.11 of 2022 against respondent No.2 – defendant No.1 by mentioning that the appellant herein as proforma formal party.

6. During the pending of the Execution Petition, appellant herein – defendant No.2 has filed claim petition vide E.A.No.154 of 2023 under Order XXI Rule 58 of CPC read with Section 47 of CPC and 151 of CPC to exclude or remove the House No.3-1-824 (Part) and House No.3-1-825 (Part) constructed in plot No.39, admeasuring 199 sq.yards, in Survey Nos.1297 and 1298, situated at Christian Colony, Jagtial Road, Karimnagar, from the Execution Petition, contending that the appellant and respondent No.2 have purchased the said properties under a registered sale deed bearing document No.7972/2013, dated 04.07.2013 and they have also entered into a registered partition deed bearing document No.6698 of 2022, dated 09.06.2022.

7. However, respondent No.1 – decree holder did not file any counter in the said claim petition.

8. Vide impugned order dated 22.12.2025, learned Execution Court Dismissed the said application holding that the claim petitioner got nothing to do with the dispute between the plaintiff and the defendant in O.S.No.211 of 2014. Even the claim petition is owner of the claim petition schedule property which was purchased along with J.Dr.No.1. The Executing Court has to consider the claim of the D.Hr. who filed the Execution Petition at first and needs to consider how it can be executed. No doubt, the claim of the claim petitioner is also equally important, but in view of the nature of the property, it is not possible to exclude or divide the property of the claim petitioner from sale proceeds. The Executing Court can consider the request of the claim petitioner if he intends to purchase the property of the J.Dr.No.1 as he will be having right of presumption. Learned Executing Court further held that Sections 2 and 3 of the Indian Partition Act speaks about the power of Court to order for sale in partition. Item No.2 of the E.P. schedule properties which is put to sale cannot be divided as it is a single building. Following Sections 2 and 3 of the Indian Partition Act, appears to be fruitful for both the parties. Therefore, the claim petition filed by the claim petitioner can