Decided on September 19,1972



- (1.) This is an application filed under Section 115 C. P. C. to revise the order dated 21-6-1972 passed by the learned Subordinate Judge. Vishakhapatnam in an unregistered E. A. of 1972 (G. R. N 1610/23-2-1972) in F. P. 127 of 1971 in O. S. 55 of 1965 on his file
(2.) The petitioner filed the above application under Order 21 Rule 52 C. P. C. praying the lower Court that the court may be pleased to investigate into the claim of the petitioner and raise the attachment to the extent of the individual half share of the petitioner. In the petition it has been alleged that the petitioner and the 2nd respondent are the joint owners and are in joint possession of a Cinema theatre known as Prabhat talkies at Vishakapatnam, that the second respondent is not the absolute owner and is not exclusively intitled to the entire property that the petitioner is entitled to and is in possession of his undivided half share in the property, that the petitioner came to know that he first respondent had obtained a money decree against the second respondent on the basis of a partnership business in O. S. 55 of 1965 on the file of Subordinate Judges Court, and in execution thereof got attached the said cinema theatre on 25/08/1965, that the said attachment is not valid and binding on the petitioner so far as his share is concerned, that the first respondent got a proclamation of a sale , for the entire property, without excluding the petitioners half share, made and it is therefore illegal and cannot bind the petitioner, that the petitioner came to know about the attachment recently when he came to the court in connection with other matters and hence the petition could not be filed earlier as the petitioner was not aware of the alleged attachment or proclamation till he was informed about the same in the Court, that as the sale is posted to 8-3-1972 this petition was filed for stay of further proceedings, including sale etc. The petition was dated 14-2-1972, but actually it appears to have been filed on 23-3-1972 in the Court. From the endorsement on the petition we find the following :-- 3-3-1972:-- Returned. 1. the petitioner should file documents, if any, to show that he has got title and possession by the date of attachment. 2. The date of attachment may be noted. Time 7 days. Represented on 6-3-1972 :-- 1. It is submitted that the petitioner filed similar application of claim and the same is pending in the High Court. The High Court was pleased to grant stay of the very same property in C. R. P. No. 1402 of 1971. which is pending and the records of the petitioner are with the High Court advocate and as such they could not be filed now. 2. The petitioner came to know of the sale of the property a week before filing the petition Returned on 14-3-1972 :-- 1. Objection dated 3-3-1972 should complied with properly. Returned on 21-3-192 :-- The petitioner could not file the documents for the present as they are with the High Court advocate. 2. The subject-matter of the property was attached on 3-12-1965. Returned 25-3-1972. The date attachment furnished is not correct. Correct date should be given. Represented : 3-4-1972. The property was attached before judgment on 3-12-1965 on I. A. No. 313 of 1965 as was noted by the office. Returned : 19-4-1972 The date of attachment furnished is not correct. Correct date should be furnished. Represented on 14-6-1972. The date of attachment known to the petitioner is submitted by the petitioner 23-6-1972. Petitioner prays the Court to investigate into the claim and raise the attachment to the extent he got title and possession by the date of attachment. But it is represented that the documents are with the High Court advocate. Submitted. Rejected as it is belated one. ............. .............. ................. ............. ............
(3.) The certified copies of the order and decree furnished by the lower Court mention in the cause-title portion that the application came up for hearing in the presence of Sri. P. V. Satyanarayana advocate for the petitioner . But the order of the learned Sub-ordinate Judge is a very short one "rejected as it is a belated one." From the endorsement of representation dated 14-6-1972, the petitioner stated that the date of submitted by him already. It does not appear from the record that any opportunity was given to the petitioner to explain the delay, if the lower Court had considered that there was any delay in filing the application. It is this order which is now sought to be revised herein.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.