" Road, B€I}.?a'y. [flafieivéifiégaraja Adv.) and'? IN '1'!-1:3 HIGH comrr or rmnzurrazm xrmmnwan k A DATED nus mm 21» my T THE HODPBLE nm.m$frI® THE HoH*m.E%;m.JUsT:cE comm of 2&4 (CFC: Between: M / s Samala1_M'am;>_pa 8s..S'c-.ns, j By its Propricter_ ' S. Ramacharldxa Redkdy _ ' S / o Samala i~*'--aIvathappa; " Aged 4;') 'years, Opp: 'Ray"adurga Bus Stand. ...Appd1ant 'M T . '_ . 2 i ., M /~s P.'avan Agencies : AA its Managing Partner, . _Sif.'. K. Prabhakar, Sfo Hanumantlxappa, major. J Sri K. Ravindra Babu, S / 0 K. Hanumanthappa, Aged 27 years, Partner of M] s Pavan Agcncics. K. Prabhakar, major, S/() K. Hanumanthappa, K. Mallikatjuna, aged: major, I S/() K. Pampanna, K. Raxnanjaneyulu, Age: major, S / 0 K. Nagappa, N. Srinivasalu, ' $ 'V ' Major, 8/0 Anéancyalu; Smt. N. ~ V "" " Age: major, KEV/>dVN".--SIfi I1TiVV¥§.SE%lu,"v.§ Resp:3nd61it.$._1 tci 7' area" . Rcsidi_ng_ at VDCQ:-'.. 193'}. I0; Near Kanekai' Road _B't;t$" *Stand, Bellary. " _ " Peddééa Qfifayéxtaappa, --. S/La"Ci"1e1Ia..Kom1a"p'pa, major, » 126-$id::_11t%cIfF'sgtarapaHi Village, ' Rgdduiig fiiaamalam Pen.akondaTa1uk, Ananfllapura District, Am;_lhI"§i Pmdesh. '" P, Ramaidas, major .. f u S/e..Ye1Ioji Rae, ' Door No.182, Ward, Tank Band Road, Respondents
(By Sri Gods Nagaraj, Adv. )
This MFA is filed under Order 43 me ‘i{:;’}’~: dope
against the order dated 18.12.2003 passed-._oni};A Ne;zxz« ire,
o.s. No.:3o/2000 by the Ac1c11.i_oivji1″Judge”-(Sr. eesorzg _
Belflary anewing IA No. W 1i1edunde:»..os;der~ 2 1- 58 of ”
CFC to set aside the order “of ?_ioridiiio11″aI attachment ‘ ‘A
before judgment dated 15.’4._!2000’.=
This appeal comingd”e~..o”1’1 ford” this day,
N. KUMAR. J., dekivered the–foliowingz
This preferred against
H13 OM63′ an appiieation filed
by thdezz-‘¥.1’Ie§iV’ev1′” oreeezz Rule 53 of the Code of
Civil ” that the eiaimarzts property has
been attf*.;aehSed””dt’in the suit 0.8. No. 130/2000 on .
– t1%ie}*fi1eAV:of._tA!1e Adeaeenm Civil Judge (Sr. om, Bellaxy.
‘rfieea?§ope11ent/plagnee’ filed suit o.s. No.13o/2000
foi” of money in a sum of Rs.5,71,861.60
‘ the defendants who are respondents 1 to 7 herein.
dlifideddddfiled an application under Order 38 Rule 5 CPO
“praying for an order of attachment which was granted on
15.4.2000. Respondents 8 and 9 filed an application
la,/’
under Order 38 Rule 8 read with Order 21 A CPO
seeking raising of the attachment on the
are the owners of the property which is’
property has been wrongly J
objection contesting the ‘
3. The trial Cotiftiliéiftei. _,ihe both the parties
held that map Qrde?’ of gigs not been duly
served on :jriefend’a;1t.e” end. therefore it was not
afieeiivel cleiii:e_ant_s leave purchased the preperty
figliep “the proceedings, as on the day
they ” ‘lithe property it was not attached. The
ettachment is not effective. Aggrieved by the said
I filed Writ: petition before this Court 32.11
W’;’P.N.o..32f479/2004. The said writ petition came to be
Adeismissied on the gmmd that the pe¥:itioner/ plaintiff has
‘ ”Ifia’1tei’r1ative remedy by way of an appeal. It is thereafter the
id “”‘preseI1t appeal is filed. In the process there is a delay of
274» days in filing the appeal. Therefore an application is
iv
filed under Section 5 of the Limitatiori Ace
condonation of delay. Notice” –is e’..ri;-.wd
respondents are duly served }eep1ee$eI1t.ed ” A
respective counsel.
4». We have hearcV1″‘i;..1;e~ for the parties.
5. As the a wrong Forum by filing of the same he has *§>.:thi's' the cause shown for
contlionafjoe constitute sufficient cause
and thefefore condoned.
order. passed by the trial Court raising
~a:t:tecfi:1″;eL::t,’A’e:=.is an order passed on an application filed
u3{€1er””VQr£ier 2 1 Rule 58 CFC. It is deemed to be 21 decree.
V’ V. Ea’ appeal is to be preferred against the said order
A’ §£§iI§{“1 I}.£}t a miscellaneous fJT’S’¥L appea} unéer Order 43 Rule
V’ m 1(q} CPO. However even the said regular appea} is to be
filed to this Court only. Having regard to the pendency of
u
the case for the last, decade we are of the View ‘*i.:ef.e1*{1er to
do cempiete justice between the pa11jes;- ‘be
proper to treat this as a reg1flar»Aappee1” of
same on merit.
7. When an e.pp1fieat;ig;Q_£5′-‘fj1ed_vLbe under
Order 21 Rule 58 -the Court to raise
attachmem étliievu by the
Court afi 41 Rule 58. Sub»
seceon — __’c:¢e1tegoriea1ly provides that all
questiofxe. question as to right, rifle and
i.1V’_.1£:.°:1’§.-.__:§t fl:e…__;)_mperty attached arising between the
‘ ‘proceeding or their representatives under this
f__@1eva11t to the adjudication of the claim or
ebiieeviieny, she}! be determined by the Couri dealing with
“IT claim or ebgeetion and not by 3 Separate suit.
}’i’herefo:’e in law the application filed by the ajpplieamt is te
be treatee as a plejnt in a suit and trial is to be conducted
and the dispute is to be adjudicated and the right of me
u’/._
parties afiected have to be determined. Unfqrt£i1iiat.e1y in
this case it was not done. No triai ‘A
opportunity is gven to the plaintiff to sheiv*:’€;i1s’;t;’ tine
of attachment was duly seIve<i1i:«é'i'Ié.'eref0re is "
not hit by the A"':'.I'I';e.re:fore
entire proceedings is vveoniraxy to the
mandatory requirerseiit' . S8 CPC and
therefore 'V Hence we
pass the '':-{'j'-: A'
i.app'eai"5s
ii order is hereby set aside.
frziiatter is remitted to the tria} Court for
aejfiéiesfion in accordance with law under Order 2 1 Ruie
‘* ‘T58 Both the parties are directed to appear before the
trial Court on 1511 December, 2008 vritheut waiting
h./
netice from the court below, and cooperate with the c:§{1t’t
in sgeeciy trial of the case.
%T; sd/:;L *
vb/- &&&&
}Tfldq§ §f fg 37