Allowed

S.Naga Veera Venkata Satya Madhusudan Ra v. P.Sri Krishnudu Kand 4 Ors.

Andhra Pradesh HC17 Apr 2024CMSA/6/2000

Case brief

AI extract

What is this about?

The High Court allowed a Civil Miscellaneous Second Appeal under S. 100 CPC. It held that the 1st appellant's claim abated due to non-substitution of legal representatives. Regarding the 2nd appellant, it found that the title claim was unreliable and the appellate court failed to appreciate evidence. The High Court set aside the appellate judgment and restored the trial court's order.

What did the court decide?

The judgment and decree of the appellate court are set aside, and the order of the trial court dismissing the petition under Order XXI Rule 97 CPC is restored.

S.Naga Veera Venkata Satya Madhusudan Ra Vs… — Execution and Attachment | Andhra Pradesh HC (2024)

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[3311]

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APHC010494362000

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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THURSDAY , THE EIGHTEENTH DAY OF APRIL TWO T H OUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL MISCELLANEOUS SECOND APPEAL NO: 6/2000

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Between:

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S.Naga Veera Venkata S atya Madhusudan Ra ...APPELLANT

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AND

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P Sri Krishnudu K 4 Ors and Others ...RESPONDENTS

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Counsel for the Appellant:

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Sri M SRIKANTH

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Counsel for the Respondents:

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Sri P PARAMESWA R RAO

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Sri G KRISHN A MURTHY

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Ms.M L NEELIMA

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The Court made the following:

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BSB, J C.M.S.A.No.6 of 2000

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JUDGMENT :

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This appeal by the third party is filed under Section 100 CPC against the judgment and decree, dated 18.01.2000, passed in A.S. No.46 of 1992 on the file of the Court of the I Additional District Judge, Krishna, at Machilipatnam, reversing the order, dated 24.03.1992, passed in E.A.No.21 of 1989 in E.P.No.10 of 1987 in O.S.No.147 of 1983 on the file of the Court of the District Munsif, Bantumilli, whereby and whereunder, the petition filed under Order XXI Rule 97 and Section 151 CPC to set aside the sale of the schedule land in E.P.No.10 of 1987 in O.S.No.147 of 1983 was dismissed.

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Heard learned counsel for the parties. The parties shall hereinafter be referred to, as they are arrayed in the execution application.

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The facts, in brief, are that the petitioners 1 and 2 and 3^rd respondent are brothers and sons of late Parnam Rama Murthy. Parnam Rama Murthy possessed ancestral properties which were mentioned in the partition list as on the date of his death. The petitioners and 3^rd respondent constitute undivided joint family even

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by the date of death of their father Rama Murthy and subsequently also. On 25.05.1981, the petitioners and 3^rd respondent partitioned

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BSB, J C.M.S.A.No.6 of 2000

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the joint family properties among themselves by metes and bounds and since then, they have been in possession and enjoyment of their respective shares in their own right from the date of the partition. In the partition, out of Ac.4.40 cents of land in R.S.No.94 at Barrepadu village, Ac.3.50 cents fell to the share of 1^st petitioner whereas the remaining Ac.0.90 cents fell to the share of 2^nd petitioner. Names of petitioners were mutated in all the revenue records. While so, the petitioners came to know in August 1987 that the petition schedule property was sold in a court auction on 01.06.1987 as 1^st respondent herein obtained a decree against 3^rd respondent and brought the schedule property to sale in execution proceedings in E.P.No.10 of 1987 in O.S.No.147 of 1983. Later, they filed petition under Section 151 CPC on 07.04.1988 praying to declare the sale as void and to set aside the same. However, the same was returned on 07.04.1988 as not maintainable. As the petitioners could not file petition seeking to set aside the sale, further steps in the matter could not be taken up. 1^st respondent is the decree holder, 2^nd respondent is the auction purchaser and 3^rd respondent is the judgment debtor in E.P.No.10 of 1987 in O.S.No.147 of 1983 on the file of the executing Court and hence they are all necessary and proper parties for adjudication of the matter in controversy. They are third party title-holders having got

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BSB, J C.M.S.A.No.6 of 2000

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possession of the schedule property in their own right and that they are not bound by the decree. 3^rd respondent has no manner of right or title or possession over the schedule land. Hence, they pray to set aside the sale of the schedule land held in E.P.No.10 of 1987 in O.S.No.147 of 1983.

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1^st and 2^nd respondents filed counters denying the material allegations in the petition and further alleging that if mutation of any name is effected, that must have been brought by the petitioners and 3^rd respondent collusively. There are no merits in the petition. It is prayed to dismiss the petition.

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3^rd respondent filed counter stating that the petition schedule property and the other properties were ancestral properties. On 25.05.1981, the schedule property fell to the share of the petitioners and the petitioners have got absolute right, title and possession till date and this respondent has no right, title or interest. Hence, this respondent has nothing to do with the schedule property.

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Before the executing Court, the petitioners examined PWs 1 to 4 and got marked exhibits A1 to A11. RWs 1 & 2 were examined on the side of the respondents and exhibits B1 to B8 were marked.

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BSB, J C.M.S.A.No.6 of 2000

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After hearing the parties and on consideration of the entire evidence, oral and documentary, the then learned District Munsif dismissed the petition.

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Aggrieved thereby, the petitioners preferred appeal before the Court of the I Additional District Judge, Krishna, at Machilipatnam.

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The appellate Court, relying on various decisions of the Supreme Court, allowed the appeal.

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Aggrieved by the same, this CMSA is preferred by the third party mainly stating that the appellate Court erred in reversing the well-considered order of the executing Court; that Order XXI Rule 97 CPC does not enable the third party to approach the Court for setting aside the sale; that Rule 97 is only an enabling provision for the decree holder or the purchaser to approach the Court, but the said provision does not enable or confer any right for the third party to seek the relief of setting aside the auction held by a Court pursuant to the decree; that the sale was held on 01.06.1987 in E.P.No.10 of 1987 and the sale was confirmed on 02.11.1988, and when once the sale was confirmed, the title stands vested on the purchaser, and either the third party or the judgment debtor could not seek any relief for setting aside the sale; and that the only

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BSB, J C.M.S.A.No.6 of 2000

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remedy available to 3^rd party is to file a separate suit for declaration of title and recovery of possession, if he is so aggrieved.

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During the course of hearing, it has been brought to the notice of this Court that the claimant No.1, whose interest is in respect of Ac.3.50 cents out of Ac.4.40 cents, died on 19.09.1993 pending the appeal and the legal representatives of the deceased have not been brought on record. However, the appeal has been allowed on 18.01.2021 even with regard to claim of the claimant No.1/appellant No.1. As per Order XXII Rule 1 CPC, the claim in respect of 1^st appellant got abated by operation of law. Consequently, the judgment passed in favour of 1^st appellant is invalid and illegal.

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Coming to the claim of 2^nd appellant/2^nd claimant with regard to Ac.0-90 cents out of total extent of Ac.4.40 cents is concerned, it stands on the same footing as that of 1^st claimant. In fact, there has been no clear-cut demarcation by metes and bounds between the claims of both the claimants. However, since the unspecified extent of Ac.0.90 cents claimed by 2^nd claimant can also be separately adjudicated, this Court proceeded to examine the validity of the decree and the judgment impugned in this appeal before this Court.

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BSB, J C.M.S.A.No.6 of 2000

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The claim is based on the entry in the revenue account in which the names of the JDr and brothers are mentioned. If his brothers alone are the owners etc, their names alone are to be noted. In any case, whether a person is either a pattedar/owner or possessor, the name of that person(s) would be mentioned but not

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by stating brothers of Hanumantharao. Surprisingly, in this case, after the name of the JDr, the word ‘brothers’ is noted, i.e., Hanumantharao brothers’. That apart, if the claims are true, there can be names of both claimants only and not the name of the JDr describing the claimants as his brothers. Since the JDr has no interest in the total extent of Ac.4.40 cents according to the claimants, such an entry is unreliable.

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It is also pertinent to mention that the very same contest is taken by the JDr earlier in his petition and the same was not accepted by the Court, and it is only on proof that the property belongs to the JDr, the same was put to sale by auction. The claimants who are no other than the brothers of the JDr were aware of the proceedings. The appellate Court erroneously omitted to consider the evidence of the Tahsildar commenting that he was not called as a witness merely because he attended before the Court to give evidence without being summoned. When the evidence of this witness is based on the official record, the credibility of which is not

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BSB, J C.M.S.A.No.6 of 2000

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in dispute, there is no proper ground to reject the consideration of his evidence. 2^nd claimant could not establish the title in respect of Ac.0.90 cents, however, the appellate Court erroneously allowed the claim. Therefore, the same needs to be set aside. In fact, the execution Court has rightly appreciated the evidence and there is no need to interfere with the order of the execution Court.

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As already noted, since the claim of 1^st appellant got abated, the judgment & decree in appeal are liable to be set aside to the extent of the claim of 1^st claimant and for the reasons already recorded in respect of the claim of 2^nd appellant also, the judgment & decree in challenge before this Court are liable to be set aside. Thus, the impugned decree & judgment are liable to be set aside.

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In the result, this Civil Miscellaneous Second Appeal is allowed setting aside the judgment and decree, dated 18.01.2000, passed by the I Additional District Judge, Krishna, at Machilipatnam, in A.S.No.46 of 1992. Consequently, the order and decree, dated 24.03.1992, of the District Munsif, Bantumilli, passed in E.A.No.21 of 1989 in E.P.No.10 of 1987 in O.S.No.147 of 1983 shall stand restored.

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BSB, J C.M.S.A.No.6 of 2000

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There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.

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___________________ B. S. BHANUMATHI, J

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18-04-2024 RAR

S.Naga Veera Venkata Satya Madhusudan Ra v. P.Sri Krishnudu Kand 4 Ors.

Case brief

What is this about?

What did the court decide?

S.Naga Veera Venkata Satya Madhusudan Ra v. P.Sri Krishnudu Kand 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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