JUDGMENT
Neeladri Rao, J.
1. Defendant No. 2 in O.S. No. 98/83 on the file of the Subordinate Judge’s Court, Nalgonda, is the appellant herein. The suit was filed by A.P. State Electricity Board as an interpleader suit. It was specifically averred in the plaint that they were inducted into possession as tenant by D-1. The latter in the written statement had also averred that the plaintiff was inducted by them into the plaint schedule property as a tenant. D-2 also inter alia contended that they inducted the plaintiff into possession.
2. Even earlier to the above suit, D-1 filed O.P. No. 23/81 on the file of the District Munsif, Nalgonda for eviction of the plaintiff.
3. The proceedings initiated under the A.P. Escheats and Bona Vacantia Act, 1974 (Act 35/74) were registered as OP 24/82. The rival claimants in regard to the properties covered by the said O.P. are D-1 and D-2 herein. By order dt. 7-3-86 in O.P. No. 24/82 it was held that D-1 herein is entitled to manage the properties of the mission, which are the subject matter of OP 24/82. Relying upon the said finding, the trial Court held in OS 98/83 that D-1 herein is having title for the building in regard to which the A.P. State Electricity Board is the tenant. The said finding was confirmed in AS 2772/86. Being aggrieved, D-2 preferred this L.P.A.
4. In W.A. No. 1057/87, a Division Bench of this Court (one of which (VNR, J.) is a party) set aside the order in O.P. 24/82, but ordered inter alia as under:
“2. That the appellant society and respondent No. 2 Society or any one is free to get the right to manage the church declared in a civil suit.
3. That pending disposal of the said suit or a direction that may be given in such a suit, the appellant society is permitted to retain the properties which were attached under the proceedings under Section 145 CPC.
4. That the respondent No. 2 Society is free to take possession of the remaining properties for which the reference is made under Section ll(3)(a) of Act 35 of 1974 if the same is not yet taken.”
5. The contention of the appellant herein is that as the finding in OP. No. 24/ 82 which is the only basis for the finding OS. No. 98/83 was set aside by a Division Bench of this Court in WA No. 1057/87, this Appeal has to be allowed and the matter has to be remanded for fresh consideration.
6. Before adverting to it, we feel it necessary to refer to Order XXXV Rule 5 Civil Procedure Code which reads as under:
“Agents and tenants may not institute interpleader suits;
5. Nothing in this order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than persons making claim through such principles or landlords.”
7. Even the plaintiff in OS 98/83 pleaded that they were inducted into possession as tenant by D-l. It is manifest from Order XXXV, Rule 5 CPC that the said interpleader suit is not maintainable in view of the above averment for plaintiff. Neither D-l nor D-2 raised a plea that the suit is not maintainable. Unfortunately it was lost sight of at every stage of the proceeding.
8. When the suit itself was not maintainable, there is no need to consider the rival claims of D-l and D-2 in regard to the plaint schedule property. Hence, the decree of the trial Court declaring that D-l is the owner of building bearing No. 6-2-9 situated in Nalgonda town i.e., plaint schedule property which was affirmed in the first appeal has to be set aside. Consequently, Clause 4 of the decree has to be set aside.
9. Clauses 3 and 5 of the decree are as follows:
“3. That the defendant No. 1 is hereby entitled to receive the rents deposited by the plaintiff before the District Munsif-cum-Rent Controller, Nalgonda and also future rents.
5. That the defendant No. 2 is hereby not entitled to receive the rents of the building bearing Municipal No. 6-2-9. Nalgonda town.”
10. It is the admitted case for both sides that the plaintiff A.P.S.E.B. already vacated the plaint schedule house in pursuance of the order in OP 23/81 by delivering possession of the same to D-l. Hence, no orders need be passed in regard to Clauses 3 and 5 of the decree.
11. Hence, the only order that can be passed at this stage is that the terms in the above decree do not confer any right upon D-l in regard to the plaint schedule property and it is a matter for consideration if a suit is going to be filed as referred to in the W.A. No. 1057/87. It has to be further made clear that the findings in the suit do not operate as res judicata as between D-l and D-2 in any future proceedings as between these parties.
12. Order XXXV, Rule 3 CPC was relied upon by the learned counsel for the appellant to contend that the trial of OS No. 98/83 should have been stayed when OP No. 23/81 was pending. If D-2 is so advised, it canrely upon the same for exclusion of period under Section 14 of the Limitation Act, and if such a plea is going to be raised in the appropriate proceedings, it has to be considered in accordance with law.
13. In the result, the L.P.A. is allowed in part. Clause 4 of the decree is set aside. Parties shall bear their own costs in this appeal.