Telangana High Court
Pabba Murali vs Ramakishore Mundada on 31 March, 2026
Author: K.Lakshman
Bench: K.Lakshman
THE HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
APPEAL SUIT NO.103 OF 2026
DATED: 31.03.2026
Pabba Murali
... Appellant - Claim Petitioner - Defendant No.2
Vs.
1.Ramakishore Mundada
... Respondent No.1 - decree holder - Plaintiff
2.Jilla Srinivas
... Respondent No.2-JDR No.1 - Defendant No.1
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
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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
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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
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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
cannot be considered and claim petitioner is at liberty to consider Section
2 of the Indian Partition Act. Challenging the said order, the
appellant/claim petitioner filed the present claim petition.
9. As discussed supra, appellant herein has claimed right over the
aforesaid property basing on the aforesaid registered sale deed and
registered partition deed. He has specifically mentioned the said fact in
the claim petition and also filed certified copies of the aforesaid two
registered documents. Even then, without affording an opportunity to the
appellant herein, to lead evidence in support of his claim, learned
Executing Court dismissed the aforesaid claim petition filed by the
appellant herein.
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10. As per Order XXI Rule 58 of the CPC, the duty cast upon the
Executing Court is to adjudicate all the questions relating to the rights of
the parties. Order 21 Rule 58 of CPC is relevant and is extracted below:-
Order XXI Rule 58: Adjudication of claims to, or
objections to attachment of property.
(1) Where any claim is preferred to, or any objection is made
to the attachment of, any property attached in execution of a
decree on the ground that such property is not liable to such
attachment, the Court shall proceed to adjudicate upon the
claim or objection in accordance with the provisions herein
contained:
Provided that no such claim or objection shall be entertained:
(a) where, before the claim is preferred or objection is made,
the property attached has already been sold; or
(b) where the Court considers that the claim or objection was
designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or
interest in the property attached) arising between the parties
to a proceeding or their representatives under this rule and
relevant to the adjudication of the claim or objection, shall be
determined by the Court dealing with the claim or objection
and not by a separate suit.
(3) Upon the determination of the questions referred to in
sub-rule (2), the Court shall, in accordance with such
determination:
(a) allow the claim or objection and release the property from
attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge
or other interest in favour of any person; or
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(d) pass such order as in the circumstances of the case it
deems fit.
(4) Where any claim or objection has been adjudicated upon
under this rule, the order made thereon shall have the same
force and be subject to the same conditions as to appeal or
otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court,
under the proviso to sub-rule (1), refuses to entertain it, the
party against whom such order is made may institute a suit to
establish the right which he claims to the property in dispute;
but, subject to the result of such suit, if any, an order so
refusing to entertain the claims or objection shall be
conclusive.
11. In Palla Chenchu Harikala vs. Bysani Satish1, Division Bench
of High Court of Andhra Pradesh at Amaravathi had an occasion to deal
with scope and ambit of Order XXI Rule 58 of CPC and at paragraph
No.18 held as follows:-
18. A reading of the above said provision gives a right to the
person objecting the attachment of any property under the
execution proceedings on the basis of its rights. When once
such objections are filed, the executing Court may dismiss the
said application at the initial stage if the property attached is
alreadysold out or such objections are initiated to protect the
proceedings. But, when the application is not dismissed on
such ground, the execution Court in such situation is duty
bound to hold enquiry by extending an opportunity to the
parties by adducing the evidence to indicate their rights as
extended in suit. The executing Court has to deal with all
issues including questions relating to title etc. In order to
determine the same, a duty is cast on the Court to conduct an
enquiry, giving opportunity to the parties to adduce evidence
and thereafter to proceed to adjudicate the matter in
accordance with the said provisions since it has the effect of
decree also.
1
Judgment dated 05.01.2022 in A.S.No.59 of 2020
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12. In K. Venkarayappa vs. Ellen Industries, Coimbatore and
others2, the High Court of Andhra Pradesh while dealing with Order 21,
Rule 58 of CPC held as under:
3. Order 21, Rule 58, C.P.C. gives a statutory and substantial
right to a person to object to the attachment of any property in
execution of a decree. When an application, in exercise
thereof, has been filed, Clauses (a) and (b) of proviso to Sub-
rule (1) of Rule 58 clothes Court with power to dismiss such
an application in limine, or (a) that the property attached had
already been sold out; or (b) it was intended to protract the
proceedings and in that process the application was
designedly made or unnecessarily has been filed. If the Court
exercises that power, the applicant is relegated to vindicate
his rights by way of a regular suit as contemplated under Sub-
rule (5) of Rule 58 of Order 21 thereof. If the Court did not
exercise the power at its inception in terms of the above
provisions, then Sub-rule (2) thereof enjoins the Court that all
questions including the question relating the right, title or
interest in the property attached shall be determined by that
Court dealing with the claim or objection and not by a
separate suit. Thereby, the Legislature intended that it is a
mandatory duty cast on the court to hold an enquiry. The
enquiry thereby posits that an opportunity to be given to the
parties to adduce all necessary evidence in support of the
claim or to resist such a claim by the opposite party and
thereafter to give finality to the objection by that Court,
subject to a right of appeal provided under Sub-rule (4)
thereof treating the order thereunder as a decree. The order
thus becomes conclusive. Thereby the Legislature has
manifested that holding an enquiry in adjudicating the right
title and interest of the objector in dealing with the claim or
objection is mandatory and the order passed thereon shall be
conclusive. Broached from this perspective, when we gleaned
through the order passed, it must but be held that the lower
Court passed the order under Sub-rule (2) of Rule 58 of Order
21, without holding an enquiry and without giving an
opportunity to the Party. It straightway passed the order on
merits. Therefore the order is per se contrary to the
mandatory language and scheme of the Code; thereby it is not
only in excess of the jurisdiction but also is vitiated by
material irregularity in exercise of its jurisdiction.
2
1985 AIR AP 261
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13. In M.s Southern Steelmet and Alloys Ltd., vs. B.M.Steel 3, a
Division Bench of Madras High Court at held as follows:-
4……..We have already expressed the view that the
adjudication referred to under Order 21 Rule 58 C.P.Code not
being summary and as it is the intention of the Legislature
under the amended civil Procedure Code that it should be a
decision as if rendered in a regular suit resulting in an
appealable decree, we are of the view that a fuller
examination of the rights of parties has to be held in the
instant case after giving them adequate opportunity to place
all relevant materials before the trial court, so that it could
ultimately decide and adjudicate on all questions including
questions relating to right, title or interest in the property
attached which either directly or indirectly arise between the
parties to the proceedings. This not having been done, we are
constrained to set aside the order of the learned judge and
remit the subject matter to the Original Side of this court for a
fuller and detailed examination as contemplated under the
amended provision and for an ultimate decision after
adjudication of the rights of parties. To the above extent, the
appeal is allowed. There will be no order as to costs.
14. Considering the principle laid down in the aforesaid judgments in
Palla Chenchu Harikala (supra), the Division Bench of High Court of
Andhra Pradesh held that Order 21, Rule 58 CPC deals with adjudication
of claims or objections with regard to properties attached either directly
or indirectly between the parties to the proceedings. The Division Bench
found fault with the Executing Court in not following the procedure laid
down under Order XXI rule 58 of CPC.
15. In the light of the aforesaid principle, coming to the facts of the
present case, as discussed supra, learned Executing Court did not follow
3
AIR 1978 Mad 270
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the said procedure and without granting an opportunity to the parties to
lead evidence, dismissed the E.A.No.154 of 2023 filed by the petitioner
to delete the aforesaid property from Execution Petition schedule
properties.
16. Therefore, without going into the merits and demerits of the case,
only on the said ground, the impugned order is set aside. The matter is
remanded back to learned I Additional District Judge, Karimnagar, with a
direction to decide E.A.No.154 of 2023 strictly in accordance with law
by permitting appellant and respondent No.1 to lead evidence in support
of their claim.
17. In view of the principle laid down by the Hon’ble Apex Court in
Periyammal (dead Thr.Lrs.) v. Rajamani 4 and also considering the fact
that EP is of the year 2022, learned Executing Court shall decide the
aforesaid claim petition filed by the appellant vide E.A.No.154 of 2023
strictly in accordance with law, within two months from the date of
receipt of a copy of this judgment. However, it is made clear that in
respect of item Nos.1 and 3 of E.P. schedule properties, executing Court
shall proceed further in accordance with law. Further, both the appellant
and respondent No.1 shall cooperate with the Executing Court in
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2025 INSC 329
10
disposing of E.A.No.154 of 2023 within the aforesaid timelines. Liberty
is also granted to respondent No.1 to file counter in E.A.No.154 of 2023.
18. With the above findings/directions, this Appeal is disposed of.
There shall be no orders as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
_________________________
JUSTICE K.LAKSHMAN
_____________________________________
JUSTICE B.R.MADHUSUDHAN RAO
31.03.2026
Dua/PLV
