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Judgment
L. Narasimha Reddy, J.—The 1st respondent filed O.S. No. 36 of 2003 against Naguru Pulla Reddy, the father of the appellants herein, in the Court of Principal Junior Civil Judge, Kadapa, for recovery of certain amount. The suit was decreed and after the decree became final, the 1st respondent filed E.P. No. 402 of 2005. He prayed for attachment of 1/4th share of the land in Sy. No. 834 of Perannagaripalli Village of Pendlimarri Mandal, Kadapa District. The judgment-debtor (J.Dr.), resisted the application by raising several grounds, including the one, under A.P. Agriculture Indebtedness Relief Act, 1977 (for short ''the Act''). The Executing Court allowed the E.P., through its order dated 08-08-2006, and ordered attachment of the property to the extent of 1/4th share in the E.P. schedule property. The J.Dr., died on 26-10-2006. He left behind him, four daughters and three sons. They were brought on record.
The appellants herein, who are four daughters and one son, filed E.A. No. 269 of 2006, under Rule 58 of Order XXI C.P.C., with a prayer to raise attachment. According to them, the land in Sy. No. 834 is an ancestral property and the share of the deceased-J.Dr., was only 1/8th. The appellants 1 to 4 have also based their claims on the provisions of the Hindu Succession Act, as amended in the recent past. The application was opposed by the 1st respondent. Through its order dated 30-08-2009, the Executing Court dismissed the E.A. Aggrieved thereby, the appellants filed A.S. No. 7 of 2009 in the Court of Principal District Judge, Kadapa. The appeal was dismissed on 01-09-2009. Hence, the Second Appeal, u/s 100 C.P.C.
Sri M.N. Narasimha Reddy, Learned Counsel for the appellants, submits that the Executing Court as well as the lower Appellate Court have proceeded on the assumption that the land in Sy. No. 834 was the self-acquisition of the J.Dr., whereas, even according to the 1st respondent, it was ancestral property. He contends that the view taken by the Courts below that the attachment has become final, and it cannot be questioned by the legal heirs, is not correct, and not being the parties to the decree, the appellants herein answer the description of third parties, to avail the remedy under Rule 58 of Order XXI C.P.C. He further contends that the 1st respondent, who is none other than the cousin brother of the deceased-J.Dr., suppressed several facts and has fraudulently purchased the property in the Court auction, taking advantage of the old age of the J.Dr.
Sri V.R. Reddy Kovvuri, Learned Counsel for the 1st respondent, on the other hand, submits that the attachment was effected by the Executing Court, after hearing the parties at full length, and being the legal representatives of the deceased J.Dr., the appellants are bound by the same. He further submits that the findings of fact recorded by the Courts below, be it, as regards the nature and character of the property, or the finality added to the attachment, cannot be canvassed in a second appeal.
After the decree against the sole defendant in the suit became final, the 1st respondent filed E.P. No. 2 of 2005 for arrest of the J.Dr., However, it was dismissed as not pressed, on the ground that the J.Dr. is an old man. Thereafter, he filed E.P. No. 402 of 2005, for attachment of an item of immovable property to the extent of 1/4th share of the J.Dr. A counter-affidavit was filed by the J.Dr., stating that he has discharged the decree by paying a sum of Rs. 4,000/- in cash, and by handing over a pair of bulls, valued at Rs. 20,000/-. He has also raised the plea of being a small farmer. The Executing Court rejected the defence put forward by the J.Dr. and allowed the E.P., directing attachment of 1/4th share of the property, through its order dated 08-08-2006. Shortly thereafter, the J.Dr. died on 26-10-2006. His two sons, i.e. respondents 7 and 8 were brought on record as legal representatives. One son i.e. the 5th appellant herein was not brought on record, on the ground that he was given on illetum. Four daughters of the J.Dr., appellants 1 to 4, were also not brought on record.
The appellants herein filed the E.A. No. 269 of 2008 under Rule 58 of Order XXI C.P.C., with a prayer to raise attachment. According to them, the share of their father was only 1/8th in the schedule property and there was absolutely no basis for directing attachment of 1/4th share of the property. The respondents herein raised an objection as to the very maintainability of the application. They pleaded that the appellants also answer the description of the J.Drs., being the legal representatives of the deceased J.Dr., and that they cannot file an application under Rule 58 of Order XXI C.P.C.
On behalf of the appellants herein, PW-1 was examined and no documentary evidence was adduced. On behalf of the respondents, RW-1 was deposed and Exs.R-1 to R-3 were marked. The Executing Court dismissed the E.A., and the order passed by it was upheld by the Appellate Court in A.S. No. 7 of 2009.
Two substantial questions of law arise for consideration in this Second Appeal, viz.,
a) whether the claim submitted by the appellants is maintainable in law, and
b) whether the Courts below were correct in proceeding on the assumption that the succession for the property opened only on the death of the J.Dr?
The record discloses that on the death of the J.Dr., the 1st respondent filed an application to bring two sons of the judgment-debtor, viz., respondents 6 and 7 herein as legal representatives. It is not in dispute that the J.Dr. has three sons and four daughters, and the appellants herein, who are the daughters and one son, were not brought on record. Therefore, they answer the description of third parties, being not parties to the proceedings. Hence, the application filed by them is maintainable in law.
The lower Appellate Court took the view that an application under Rule 58 of Order XXI C.P.C. can be filed even by J.Dr. That, however, is a debatable proposition. Though the appellants are eligible to be brought on record as legal heirs of the deceased - J.Dr. they are entitled to maintain the application. The reason is that the 1st respondent was choosy and selective in bringing the legal representatives of the deceased on record. Therefore, the first question is answered in favour of the appellants.
Conning to the second question, the Executing Court as well as the lower Appellate Court proceeded on the assumption that the attached property was self-acquisition of the J.Dr. This, however, is contrary to record. A perusal of the order dated 08-08-2006 in E.P. No. 402 of 2005 discloses this. The Executing Court extracted the contents of the affidavit filed in the E.P. by the decree-holder. The relevant portion reads-as under:
The J.Dr. is having both movable and immovable properties. Previously the D.Hr. filed E.P. No. 2/2005 for arrest of the J.Dr. and the same was dismissed as not pressed on 09-11-2005, since the J.Dr. is an old man. The J.Dr. is having means to discharge the decretal amount. The EP schedule mentioned immovable properties are ancestral in nature and the J.Dr. is having a share in the same.
Thus, even according to the 1st respondent the EP schedule properties are ancestral in nature. In their EA, the appellants stated that the attached property was jointly held by the family. The Executing Court did not express any opinion as to the character of the property. The lower Appellate Court, however, proceeded to observe that the succession to the property opened only on the death of the J.Dr., and the appellants 1 to 4 herein do not have the benefit of the recent amendment to the Hindu Succession Act, that provided for equal share to daughters, on par with the sons of a deceased. Once the 1st respondent himself stated that the attached property was ancestral in nature, the very basis for the discussion undertaken by the lower Appellate Court becomes shaky. The appellants did not rest their claim on the basis of inheritance to the property held by the deceased. On the other hand, they pleaded coparcenary rights in that property, which can be canvassed even during the lifetime of their father, the Kartha of the family. Therefore, the second question is also answered in favour of the appellants.
The Second Appeal is accordingly allowed, and the orders passed in E.P. No. 402 of 2005, and the judgment and decree in A.S. No. 7 of 2009 are set aside, it is however left open to the respondents to take steps for execution of the decree, in accordance with law.
There shall be no order as to costs.