APHC010679382017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3457] WEDNESDAY,THE EIGHTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE HARINATH.N CIVIL REVISION PETITION NO: 1223/2017 Between: 1. DURISETI KRISHNAMACHARY, KRISHNA DIST, S/O BRAHMAIAH. HINDU, AGED ABOUT 72 YEARS, OCC: CULTIVATION, RIO THIRUVURU, KRISHNA DISTRICT. ...PETITIONER AND 1. CHAPPIDI GOVARDHANA RAO KRISHNA DIST, S/o Lakshmaiah, Aged about 45 years, Occ: Cultivation & Business. R/o P.T.Kothuru, Tiruvuru, Krishna District. ...RESPONDENT Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toaggrieved by the order passed in E.P.No.34/2016 in 0.S.No.195/2015 dt.25.1.2017 on the file of Principal Junior Civil Jude, Tiruvuru IA NO: 1 OF 2017(CRPMP 1637 OF 2017 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondent not to alienate the schedule property situated in R.S.No.263/1 in an extent of Ac.4.33 cents situated at Nadim Tiruvuru, Tiruvuru village and Mandal, Krishna District by suspending the order passed in EP No.34/2016 in OS No.195/2015 dt.25.01.2017 on the file of Principal Junior Civil Judge, Tiruvuru pending disposal of the above CRP., and pass Counsel for the Petitioner: 1. B GEETA Counsel for the Respondent: 1. SREENIVASA RAO VELIVELA The Court made the following: CRP.No.1223 of 2017 THE HONOURABLE SRI JUSTICE HARINATH.N CIVIL REVISION PETITION No.1223 of 2017 ORDER : 1. The present Civil Revision Petition is filed aggrieved by the order dated 25.01.2017 passed in EP.No.34 of 2016 in O.S. No. 195 of 2015 by the Principal Junior Civil Judge, Tiruvuru. 2. The petitioner is the decree holder in a suit for recovery of money. The respondent’s wife had purchased the property admeasuring Ac. 4.33 cents during her lifetime and passed away intestate on 01.04.1996. The respondent, being a Class-I legal heir, inherited the property of his deceased wife. Accordingly, the petitioner sought attachment of ¼ th share in the said immovable property. The Execution Petition (E.P.) was filed seeking attachment of the respondent’s ¼th share in the property, which stood in the name of his wife. 3. The Principal Junior Civil Judge, vide order dated 25.01.2017, dismissed the E.P. on the ground that the undivided share which devolved on the respondent is yet to be divided by metes and bounds. It was also observed in the order that the respondent had filed an insolvency petition, which is pending on the file of the Senior Civil Judge, Nuzvid. It was also observed that it is not clear as to whether the 1/4th share of the property was shown as CRP.No.1223 of 2017 one of the schedules in the Insolvency Petition. As such, on these grounds, the learned Judge has dismissed the E.P. 4. The learned counsel for the petitioner places reliance on the judgment passed by the High Court of Madras in Shanmugham Chettiar vs. Nagasami Ayyar & Co. The High Court held that a holder of a money decree is entitled to seek attachment of the judgment debtor’s share in the coparcenary property of a joint family. It is also submitted that Section 44 of the Transfer of Property Act, 1882, has also been read into the pleadings of the E.P., but unmindful of that, the learned Judge has dismissed the E.P. 5. On a query from the Court with regard to the status of the IP.No.23 of 2015, the learned counsel appearing for the petitioner submitted the copy of the order dated 25.04.2023 dismissing the IP.No.23 of 2015 by the learned Senior Civil Judge, Nuzvid. 6. Learned counsel appearing for the respondent submits that the EP was dismissed primarily on the ground that the respondent’s wife has executed an agreement of sale in favour of his brother in the year 2005. It is submitted that her brother paid an amount of Rs.3,50,000/- which was utilized for treatment of Cancer of the wife of the respondent. CRP.No.1223 of 2017 7. It is also submitted that the property which is sought to be attached by the petitioner could not have been attached without the property being divided and demarcated with metes and bounds. As such prays for dismissal of the present Civil Revision Petition (CRP). 8. Heard the learned counsel for the petitioner and the learned counsel for respondent. Perused the material on record. 9. Order 21 Rule 54 of CPC reads as follows ; Rule 54- Attachment of Immovable Property : - 1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. (1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. 2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village. 10. The petitioner is a Decree Holder and sought to execute the money decree by seeking attachment and sale of the property CRP.No.1223 of 2017 which devolved to the share of the respondent. Admittedly, the property which is sought to be attached was purchased on the name of the wife of the respondent. She passed away intestate. For executing the money decree, the petitioner sought attachment of the said property which essentially needs to be considered as a joint family property. 11. There is no law which prohibits attachment of the extent of share in the joint family property for satisfying the money decree. When the remedy of recovery can be achieved by putting to auction the share of the Judgment Debtor in the joint family property by subjecting it to attachment and subsequent proclamation of sale under the CPC, the said process would have to be followed for satisfying the decretal amount. 12. It is not essential for the property to be divided by metes and bounds for seeking attachment. The learned Judge erred in dismissing the EP on this ground. That apart, the learned Principal Junior Civil Judge, Tiruvur while dismissing the EP also refers to the insolvency petition filed by the respondent, the IP was subsequently dismissed on 25.04.2023. 13. The alleged agreement of sale executed by the wife of the respondent in favour of her brother for meeting the expenses for her Cancer treatment is concerned, as on date that title has not CRP.No.1223 of 2017 been transferred in favour of any third party. The brother of the respondent’s wife has not filed any suit seeking the relief of specific performance. The remedy if any of the agreement holder would have to be invoked by approaching the competent Court seeking appropriate relief. 14. Section 44 of the Transfer of Property Act, reads as follows Section 44 of Transfer of Property Act : - Transfer by one co-owner.—Where one of two or more co- owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. 15. Section 44 of the Transfer of Property Act, makes it amply clear that the co-owner of the joint property entitles him to transfer his extent of share. In such a scenario nothing could have forbidden the maintainability of EP against the respondent. 16. On these considerations, this Court is of the considered view that EP.No. 34 of 2016 in O.S. No. 195 of 2015 by the Principal Junior Civil Judge, Tiruvuru is maintainable against the respondent. Accordingly, the order dated 25.01.2017 passed in CRP.No.1223 of 2017 EP.No.34 of 2016 in O.S. No. 195 of 2015 is hereby set aside, EP is restored to file and considering the date of decree i.e., 14.12.2015 passed in OS.No.195 of 2015, there shall be a direction to the Principal Junior Civil Judge, Tiruvuru to expidite the disposal of the EP preferably within a period of six months from the date of receipt of this order. 17. Accordingly, the Civil Revision Petition is allowed without costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed. ___________________ JUSTICE HARINATH.N Date:08.10.2025 KGM CRP.No.1223 of 2017 THE HONOURABLE SRI JUSTICE HARINATH.N CIVIL REVISION PETITION No.1223 of 2017 Date:08.10.2025 KGM