Singampalli Mani, v. Smt. Chenna Appala Narasamma

Andhra Pradesh HC18 Oct 2019CRP/2144/2014

Case brief

AI extract

What is this about?

This common order disposed of two civil revision petitions challenging orders in a partition suit. The court held the trial court correctly ordered the sale of an impartible house after parties were given opportunities to buy it. The revision petitions were dismissed, and police aid for delivery of possession to the auction purchaser was upheld against resistance.

What did the court decide?

Both civil revision petitions dismissed; orders of the trial and executing courts confirmed.

Singampalli Mani, Vs Smt. Chenna Appala Narasamma — Partition | Andhra Pradesh HC (2019)

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HONOURABLE SRI JUSTICE M. VENKATA RAMANA

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C.R.P.No.2144 of 2014

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and C.R.P.No.515 of 2019

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COMMON ORDER:

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C.R.P.No.2144 of 2014 is preferred against the order of learned IV Additional Senior Civil Judge (FTC) Visakhapatnam, in I.A.No.349 of 2010 in I.A.No.133 of 2008 in O.S.No.1382 of 2003, dated 09.12.2010.

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C.R.P.No.515 of 2010 is preferred against the order of the same Court in E.A.No.3 of 2017 in E.P.No.2 of 2013 in O.S.No.1382 of 2003, dated 28.01.2019.

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In both these civil revision petitions the petitioners are defendants in the suit and the Judgment Debtors in E.P.No.2 of 2013.

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I.A.No.349 of 2010 in I.A.No.133 of 2018 in the suit was filed by respondents 1 and 2, who are plaintiffs in the suit.

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They filed suit for partition of the plaint schedule property. It is a house bearing D.No.11-6-9 covering a total area of 87 square yards, at Rockdale layout, behind Viswabhavan Hotel, Visakhapatnam, with RCC slab building consisting of two portions. A preliminary decree was passed in the suit directing division of this house into four equal shares and to allot two such shares to respondents 1 and 2, one each.

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Thereupon, on an application by respondents 1 and 2 in I.A.No.133 of 2008 for passing final decree under or Order XX Rule 18 C.P.C, in terms of preliminary decree, a Commissioner was appointed by an order dated 17.09.2012. The learned Commissioner visited the house due for division, measured it with the help of a licensed surveyor and filed a report dated 30.11.2009.

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MVR,J2 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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Since the trial Court felt that this house is not capable of being divided into four shares, on a petition filed by respondents 1 and 2 in I.A.No.349 of 2010 for the purpose of demolition of structures in the site, upon hearing on their behalf directed to sale this house in open auction in terms of Order XXI Rules 64 to 72 C.P.C. The trial Court considered the ruling of then composite High Court of Andhra Pradesh in Pabba Satyamma @ Renikunta Balaiah v. Pabba Sathyamma and ors .¹ , and obviously relying on Sections 2, 6 & 7 of Partition Act, 1893 ordered likewise. This order is now impugned in C.R.P.No.2144 of 2014.

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Thereafter, pursuant to sale of property thereon in public auction, the 3^rd respondent became the highest bidder for Rs.40,28,000/-. This auction was conducted on 05.03.2012. Thereafter, the highest bidder deposited required amount and requisite expenses for engrossing sale certificate. Thereupon, a sale certificate was engrossed which was notified by the concerned registering authority on 06.07.2012 and a final decree was passed in terms of preliminary decree on 17.09.2012.

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This auction purchaser, viz., the 3^rd respondent laid E.P.No.2 of 2013 for delivery of this house in terms of Order XXI Rule 95 C.P.C. It was ordered. When there was an obstruction offered by the petitioners when amin of the Court tried to deliver this property on 04.07.2013 at about 11.30 a.m., delivery could not be effected. Thereupon, he filed E.A.No.45 of 2014 for police aid for effecting delivery of this property. Even then delivery could not be effected since the petitioners had locked the doors of the premises. According to his version in the affidavit filed in support of E.A.No.3 of 2017, he filed E.A.No.3 of 2017, to order police aid to amin (field assistant) to enable him to execute delivery warrant. In the affidavit

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1 2010 (6) ALT 52

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MVR,J C.R.P.No.2144/2014 and C.R.P.No.515/2019

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filed in support of E.A.No.3 of 2017, it is also stated by this auction purchaser that breaking open of locks of the house is required, though it is not specifically reflected in the prayer portion of the petition. Only police aid is requested in the prayer portion of the petition.

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E.A.No.3 of 2017 was ordered on 28.01.2019 by the same Court granting police aid for effecting delivery of the property. This order is challenged in C.R.P.No.515 of 2019.

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Sri S. Sriramachandra Murthy, learned counsel representing the petitioners in both the revision petitions, referring to the proceedings that went on at the stage of the suit as well as in final decree petition and in the execution proceedings, contended that passing of preliminary decree by the trial Court itself is bad and when the report of the learned Commissioner did not reflect impartible nature of the house in question, series of steps directed by the Court below including sale of this house is improper and on the verge of illegality. Learned counsel further contended that when passing of such final decree itself is illegal and when there is absolutely no reference as to impossibility of division of this house in the commissioner report, which is a valuable property in Visakhapatnam town where admittedly the petitioners have been residing, directing delivery of the same in Execution Proceedings in favour of the 3^rd respondent is totally uncalled for. Thus elaborating on the material available, both the orders in these revision petitions are seriously assailed, on behalf of the petitioners.

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On behalf of 1^st respondent in C.R.P.No.515 of 2019 Sri P. Durga Prasad, learned counsel bringing to the notice of this Court various steps taken by the trial Court in the interest of justice and to safeguard the interest of the parties to the matter, contended that when

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MVR,J4 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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the property was offered for sale among the parties to the suit the petitioners did not come forward to purchase and pursuant to the order in I.A.No.349 of 2010, dated 20.07.2019, though the prayer was for directing demolition of structures in the property, the trial Court directed sale of property. Thus, it is asserted on behalf of the auction purchaser that in the sale held on 05.03.2012 he became the highest bidder, deposited the required bid amount, leading to issuance of sale certificate and passing of final decree ultimately on 17.09.2012.

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Learned counsel Sri P. Durga Prasad further contended that when this sale was ordered, no objection was raised on behalf of the petitioners and therefore, they are now precluded from raising any objection in respect of the proceedings went on in the trial Court.

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Learned counsel further contended that when execution was laid for taking possession of this house by the auction purchaser, resistance was offered by the petitioners and that they cannot take advantage of their own actions, to impugn the orders so passed by the trial Court at different stages. Thus, Sri P. Durga Prasad, learned counsel for the 1^st respondent in C.R.P.No.515 of 2019 supported the orders under revision and requested to dismiss both the revision petitions.

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In view of these contentions, the following points arise for determination:-

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Whether order of the learned trial Judge directing sale of the house in question is proper and if it is suffering from illegality?

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Whether granting police aid to execute warrant of delivery in favour of the 1^st respondent in C.R.P.No.515 of 2019 is proper in the circumstances?

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To what relief?

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MVR,J5 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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Point No.1 :

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The petitioners contested the suit as defendants and a preliminary decree was passed on 16.08.2007 against them and in favour of respondents 1 and 2, who are plaintiffs. The house in question was directed to be divided into four equal shares and respondents 1 and 2 were directed to be allotted one such share each. The contention on behalf of the petitioners is that since there is no specific direction allotting specific shares to both of them by this preliminary decree, it is not valid or proper. This contention is considered only to reject. The reason is that though they suffered this preliminary decree participating in the trial offering contest to the claim of respondents 1 and 2, they remained quiet without preferring any appeal against it. Therefore, it is not open for them now, to raise such an objection. Even otherwise, being parties to a suit for partition, they stand in the position of the plaintiffs, who as well could have opted for passing of final decree in their favour in terms of preliminary decree.

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I.A.No.133 of 2008 was filed in pursuance of the preliminary decree by the respondents 1 and 2 and as discussed supra, ultimately a final decree came to be passed against them on 17.09.2012.

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When a Commissioner was appointed in the final decree proceedings upon submission of report, apparently no objections were filed on behalf of the petitioners, though time was granted. In the course of hearing these revision petitions, learned counsel for the petitioners Sri S. Sriramachandra Murthy produced a copy of the docket proceedings relating to I.A.No.133 of 2008. As per these docket entries, time was granted after submission of Commissioner’s report till 22.01.2010. In fact, as per docket entry dated 25.02.2010 learned counsel on behalf of these

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¶37

MVR,J C.R.P.No.2144/2014 and C.R.P.No.515/2019

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petitioners filed a Memo to the effect that they did not have objection to ‘partition’ the house in question. Thus, thereafter the trial Court also made attempts to allot shares. However, finding difficulty, since the house being impartible in nature, on 29.06.2010, a detailed order was passed by the trial Court calling for suggestions on behalf of respondents 1 and 2 herein. In the meantime, I.A.No.349 of 2010, the order which is now impugned in C.R.P.No.2144 of 2014, was filed. Notice was ordered to the petitioners in the above petition. They did not choose to file any counter, resisting the petition in I.A.No.349 of 2010.

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As seen from the order in I.A.No.349 of 2010, though the request of respondents 1 and 2 herein was for demolition of structures in the site, the trial Court felt desirable to direct sale of property, after hearing learned counsel for the respondents. In para-3 of this order, it is clearly stated that these petitioners did not choose to file their counters and contest the matter. Thus it was observed that they remained ex parte.

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When sale of this house was ordered, as seen from the proceedings in the above matter, opportunity was also given for these petitioners to purchase this house. When sale of this house in fact was conducted among these parties to the suit on 17.11.2011, the 2^nd petitioner came forward to purchase this house, become highest bidder in the auction for Rs.50 lakhs and after deducting his share of Rs.12.50 lakhs out of it (1/4^th share) he was directed to deposit Rs.37.50 lakhs. However, on 19.12.2011 as seen from the docket noting, the 2^nd petitioner expressed his inability to deposit such amount.

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Thus, a careful consideration of the proceedings referred to above, that went on in the trial Court make out that every opportunity

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MVR,J7 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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was given to the petitioners to have their version. The best possible way which the trial Court had dealt with in the situation was holding sale of this property among the sharers at first and allowing the 2^nd petitioner to purchase it. On account of default of the 2^nd petitioner this house could not be recorded as sold in the trial Court in his favour.

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In addition, when the petitioners did not choose to participate in the course of enquiry in I.A.No.349 of 2010 and when they chose to participate in the subsequent proceedings thereon, they cannot now be question conduct of sale in favour of the 3^rd respondent and acceptance of his bid by the trial Court.

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For the same reasons, it is not open for the petitioners to contend that the trial Court was not right in observing and holding that the house in question is incapable of division. Though attempt is made relying on the report of the Commissioner and the fact that this house has a common veranda with two iron grilled doors for both the portions that could have been enabled division of the property, it is manifest that it was not so suggested on behalf of the petitioners in the trial Court. The anxiety of the petitioners is apparent, since they have to vacate this premises which they have been in occupation, on account of the orders of the trial Court and in favour of the 3^rd respondent.

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In this context on behalf of the petitioners reliance is placed in Hasham Abbas Sayyad v. Usman Abbas Sayyad & ors .,² wherein the effect of Order XXVI Rules 13 and 14 C.P.C and the procedure to follow when the house, which is the subject matter of partition, is found to be impartible in nature. In given facts and circumstances of the case it was observed in the above ruling that without drawing final decree proceeding

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2 (2007) 2 SCC 355

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MVR,J8 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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the Court could not have put the property on auction sale. In the context of filing an execution petition based on final decree proceedings, such observation was made.

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Sale of the property, when it is found to be indivisible in nature or not amenable for convenient division was per the shares allotted to the parties, was rightly followed by the learned trial Judge in this present case. Provisions of partition Act have to be applied as well as the rules thereunder in this context. In this factual backdrop the contentions advanced on behalf of the petitioners in this context, cannot be appreciated.

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Therefore, considering these circumstances, and for the above stated reasons, the objection of the petitioners against the impugned order cannot stand and contentions advanced on behalf of the auction purchaser, viz., the 3^rd respondent have to be accepted. This point is ordered against the petitioners and in favour of the auction purchaser.

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Point No.2 :

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When valid execution is taken out after the final decree was passed by the trial Court, the conduct attributed to the petitioners, when warrant of delivery was sought to be executed is proved to be imporper. They are bound by the decrees passed against them. They are to their knowledge. When such resistance was applied as is complained of by the auction purchaser-3^rd respondent the Executing Court was justified in directing delivery of this house to him with police aid. It cannot as such be found fault with. Absolutely, there is no jurisdictional error much less any illegality or irregularity in the order so passed. Thus rejecting the contentions on behalf of the petitioners and for the reasons stated while

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MVR,J9 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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considering Point No.1 supra, this point is answered in favour of the 3^rd respondent and against the petitioners.

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Point No.3 :

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In view of the findings on Point Nos.1 and 2 both these revision petitions have to be dismissed confirming the orders of the trial/executing Court.

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In the result, C.R.P.No.2144 of 2014 is dismissed. Order of the Court of learned IV Additional Senior Civil Judge, Visakhapatnam in I.A.No.349 of 2010 in I.A.No.13 of 2008 in O.S.No.1382 of 2003, dated 09.12.2010 is confirmed.

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C.R.P.No.515 of 2019 is dismissed confirming the order of the Court of learned IV Additional Senior Civil Judge, Visakhapatnam in E.A.No.3 of 2017 in E.P.No.2 of 2013 in O.S.No.1382 of 2003 dated 28.01.2019.

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As a sequel, interim order earlier granted stands vacated and pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.

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_________________________ M. VENKATA RAMANA, J.

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18^th October, 2019 Js.

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MVR,J10 C.R.P.No.2144/2014 and C.R.P.No.515/2019

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HONOURABLE SRI JUSTICE M. VENKATA RAMANA

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C.R.P.No.2144 of 2014 and C.R.P.No.515 of 2019

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