Dismissed

Dr. Madina Balakrishna v. Malla Krishna Rao

Telangana HC13 Sept 2011CRP/2235/2009

Case brief

AI extract

What is this about?

In a civil revision against an order granting police protection for executing an eviction decree, the High Court held that transferees of property rights can execute decrees without a formal assignment under CPC Section 146. Since the execution petition was filed within two years, no notice was required, and the order granting police aid was lawful.

What did the court decide?

Civil Revision Petition dismissed with no order as to costs.

Dr. Madina Balakrishna Vs Malla Krishna Rao — Contract and Commercial Disputes | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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CIVIL REVISION PETITION No.2235 of 2009

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Dated:- 13th September, 2011

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Between:-

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Dr.Madina Balakrishna

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…Petitioner/Judgment Debtor

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AND

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Malla Krishna Rao and others

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…Respondents

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.2235 of 2009

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ORDER:-

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This Civil Revision Petition is directed against the order dated 25.05.2009 passed in E.A.No.59 of 2009 in E.P.No.7 of 2009 in O.S.No.9 of 1997 by the Senior Civil Judge, Sompeta, Srikakulam District, whereby and whereunder, on the application filed by the respondents 1 to 4 herein in E.ANo.59 of 2009, police protection was ordered for execution of the decree.

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2. The petitioner herein is the judgment debtor who suffered a decree of eviction passed in O.S.No.9 of 1997 by the Court below and respondents 1 to 4 herein are the decree-holders in the said suit.

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3. The brief facts of the case are as follows:-

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Respondents 1 to 4 herein are the absolute owners and the petitioner herein is the tenant of the plaint schedule building. Respondents 1 to 4 herein filed O.S.No.9 of 1997 before the Court below for recovery of possession of the plaint schedule building and seeking eviction of the petitioner herein and also a direction to pay the arrears of

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the house rent and costs. The Court below, by its order dated 02.02.2000, decreed the suit directing the petitioner herein to vacate the petition schedule building within three months from the date of its judgment, i.e., 02.02.2000. The petitioner herein was also directed to pay arrears of rent of Rs.15,000/- due by him for the months of October, 1996 to January, 1997 and to pay the agreed rent of Rs.5,000/subsequent to the date of the suit till the date of delivery and the suit costs. Aggrieved by the same, the petitioner herein, who was the sole defendant in the said suit, preferred an appeal in A.S.No.61 of 2000 on the file of the II Additional District Judge, Srikakulam, where the matter was kept pending for a considerable period. It is not clear under what circumstances the petitioner had withdrawn the said appeal, but the fact remains that the petitioner herein had withdrawn the said appeal on 20.02.2008.

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4. It appears that subsequently, the original plaintiff – Prathi Satyabhama and her power of attorney holder – P.S.R.Murthy died. Respondents 6 to 9 herein came on record as the Legal Representatives of the original plaintiff. Then, respondents 6 and 7 herein, i.e., decreeholders 2 and 3 had relinquished their right over the petition schedule building in favour of respondents 8 and 9, i.e., decree-holders 4 and 5 vide registered relinquishment deed bearing document No.1000 of 2005 dated 09.03.2005. Thus, respondents 8 and 9 herein i.e., decree-holders 4 and 5 became the absolute owners, from whom, respondents 1 to 4 herein have purchased the petition schedule building under registered sale deed dated 03.05.2006 for a total sale

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consideration of Rs.14,00,000/-. Then, respondents 1 to 4 herein, who claims to have purchased the petition schedule building from the decree-holders 4 and 5, filed E.P.No.7 of 2009 before the Court below seeking delivery of the vacant possession of the petition schedule building by evicting the petitioner herein, under Order XXI Rule 35, Rule 11(2) read with Section 146 C.P.C.

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5. The Court below ordered delivery of the petition schedule building on 30.04.2009 and issued delivery warrants and posted the E.P. to 10.06.2009. Then, the Court Amin went to the petition schedule building to execute the said warrant on 12.05.2009. The report of the Court Amin reveals that on 12.05.2009 when he had shown the delivery warrant to the petitioner herein, he refused to comply with the order of the Court and, therefore, he cold not execute the warrant and accordingly returned the warrant to the Court.

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6. Then, challenging the order of issuance of delivery warrant dated 30.04.2009 of the Court below, the petitioner herein filed this revision on 18.05.2009 and it was listed before this Court on 20.05.2009 and on that day, this Court ordered to post the C.R.P. on 01.06.2009, but no stay or interim orders were passed by this Court.

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7. As the matter stood thus, respondents 1 to 4 herein filed two applications, i.e., one for advancement of the E.P. and another for police protection in E.A.No.59 of 2009 on 18.05.2009 and both the applications were ordered on the same day and delivery with the help of police

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protection was thus ordered and the E.P. was posted to 10.06.2009.

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8. Challenging the order of granting police aid to respondents 1 to 4 herein, the petitioner herein filed another C.R.P. before this Court in C.R.P.No.2295 of 2009 on 28.05.2009 along with C.R.P.M.P.No.3203 of 2009 to stay all proceedings pursuant to the order of Senior Civil Judge, Sompeta, passed in E.A.No.59 of 2009 and this Court, in the said M.P., granted interim stay of all further proceedings in E.A.No.59 of 2009. It appears that the petitioner had taken the stand that the decree was not assigned in favour of respondents 1 to 4 herein and without issuing any notice to him, the Court below passed orders in the E.P. However, the interim order dated 28.05.2009 of this Court was not communicated to the Court below and the Court Amin proceeded to deliver the petition schedule building to respondents 1 to 4 herein on 30.05.2009.

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9. Sri K.Bheema Rao, Learned counsel for the petitioner herein/judgment debtor submitted that in fact, on 30.05.2009, a junior advocate went to the petition schedule building at Palasa and intimated the Court Amin who was executing the delivery warrant about the interim orders of this Court dated 28.05.2009, but however, the Court Amin refused to consider the representation and thereafter, one T.Joga Rao, counsel for the petitioner herein before the Court below, submitted a memo to the Court Amin at 10:00 A.M. and then he got issued a telegram at 11:00 A.M. to the lower Court. As the Court Amin refused to oblige the said

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memo filed by him, Sri Joga Rao, having received the Xerox copy of the interim order of this Court at 11:57 A.M., immediately approached the Court below and filed a memo intimating that this Court passed interim orders on 28.05.2009 in C.R.P.No.2295 of 2009 staying all proceedings. It appears that the learned Judge of the Court below, on seeing the Xerox copy of the interim order of this Court dated 28.05.2009, immediately passed orders recalling the delivery warrants issued by him and sent the same through a special messenger who went to the plaint schedule building at Palasa and handed over the same to the Court Amin at 03:30 P.M on 30.05.2009.

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10. The specific case of respondents 1 to 4 herein is that though they initially filed a caveat petition in C.R.P.No.2235 of 2009, but however, when the said C.R.P. came up for hearing, no notices were issued to them about filing of C.R.P.No.2295 of 2009 by the petitioner herein and also about passing of interim orders by this Court on that day. Their further case is that the memo filed by the petitioner herein before the Court below on 30.05.2009 did not disclose that junior advocate approached the Court Amin at about 08:30 A.M. on that day or about the attempt of Sri Joga Rao, advocate, in filing a memo before the Court Amin at 10:00 A.M. It is also his submission that before filing the memo on 30.05.2009 before the Court below, the petitioner had not taken any steps to intimate about the interim orders passed by this Court to the Court below and by that time, the entire process of delivery was over.

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11. Sri K.Bheema Rao, learned counsel for the petitioner herein submitted that the petitioner herein is a registered medical practitioner and that he is running a hospital in the petition schedule building and that the entire equipments of the petitioner herein were kept outside the premises and was loaded in trucks and the last truck reached to the petitioner herein at about 08:00 P.M. on 30.05.2009 and, therefore, there is no truth in saying that the delivery process was over before 03:30 P.M. on that day. His main contention is that when the E.P. was posted to 10.06.2009 and this C.R.P. was posted to 01.06.2009, there was no necessity for respondents 1 to 4 to file an application for advancement and that admittedly no notice was issued to the petitioner herein in the said application or in the application for police protection and these circumstances go to show that respondents 1 to 4 tried to execute the decree without notice to the petitioner herein with a malafide intention. It is also his submission that when interim orders were passed by this Court on 28.05.2009 and the same was intimated to the Court Amin in the morning hours of 30.05.2009 itself, the Court Amin ought not to have executed the warrant and, therefore, great injustice has been done to the petitioner and, therefore, the impugned orders passed by the Court below including the delivery of possession have to be set aside and the petitioner herein has to be re-delivered the possession of the petition schedule building.

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12. Per contra, Sri K.Manik Prabhu, learned counsel for respondents 1 to 4 herein submitted that

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admittedly the E.P. has been filed within a period of two years from the date of the decree passed by the Court below and, therefore, no notice is required to be given to the Judgment-debtor under Order XXI Rule 22 C.P.C. It is also his submission that a reading of Section 146 and the explanation to Order XXI Rule 16 C.P.C. makes it clear that a transferee of rights in the property, may apply for execution of decree without a separate assignment of the decree. In support of this contention, he has relied on the judgment in the case between D.Rasaranjan Vs. Y.Raja Rajeshwar i^[1] . It is also his submission that the petitioner herein filed two applications, i.e., for advancement and for police protection on 18.05.2009 and since in the execution petition itself is filed within two years of the date of decree, no notice is required to the judgment-debtor, in those two applications also no notice is required and there is no illegality or irregularity in ordering those applications by the lower Court. It is also his submission that since the revision has been filed only on the ground that no notice was issued to the judgment-debtor and that the decree-holders have not assigned the decree in favour of respondents 1 to 4 and since the law on these two points is well settled, there are no merits in the revision and the same is liable to be dismissed. His main contention is that admittedly, the petitioner herein has suffered a decree in the year 2000 and that though the petitioner herein filed an appeal in A.S.No.61 of 2000 on the file of II Additional District Judge, Srikakulam, but admittedly, he had withdrawn the same on 20.02.2008 and that having withdrawn the appeal filed by him against the decree, now the petitioner cannot say that

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the decree cannot be executed and when it is executed, he cannot have grievance about the same. His main submission is that once a decree has become final and when it is executable and when the petitioner is bound by the decree, the petitioner ought not to have caused any obstruction to the Court Amin on 12.05.2006 when the Court Amin went to execute the decree and that obstructing the Court Amin in executing the decree on 12.05.2009 is an illegal act on the part of the petitioner and, therefore, the Court Amin had no other go except to return the warrant to the Court below and in the above circumstances, the respondents were compelled to file an application for advancement and since there was obstruction caused by the petitioner in executing the warrant without any cause, the Court below is justified in granting police aid for the purpose of executing the decree. It is also his submission that though the E.P. was advanced and the separate order was passed in E.A.No.59 of 2009, the said order is not challenged by the petitioner. It is also submitted that the only order challenged by the petitioner is granting of police aid in executing the decree dated 25.05.2009 and if any stay is granted by this Court, the said stay is only to the extent of granting police aid and that the earlier order passed for delivery of possession had not been stayed and there was no hurdle to the Court below to execute the decree. It is also his submission that when the petitioner came to know about ordering delivery of possession on 12.05.2009, he ought to have filed a memo before the Court below raising objection or ought to have filed an application

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under Order XII Rule 58 C.P.C. opposing the execution of the decree, who admittedly, did not do so. It is also his submission that from 12.05.2009 to 20.05.2009, the petitioner kept quiet and it is only on 20.05.2009 he filed this C.R.P. and this Court, having considered all the facts and circumstances and hearing both the parties, did not grant any stay in favour of the petitioner herein in C.R.P.M.P.No.3203 of 2009 and this clearly shows that there is no order restraining the execution the decree. It is also his submission that when the petitioners obtained interim stay orders in C.R.P.No.2295 of 2009 on 28.05.2009, nothing prevented the petitioner herein to obtain the said interim order by wire at cost or to file a memo before the Court below intimating the Court below that there is a stay order in his favour, which the petitioner failed to do so till 30.05.2009, i.e., till the delivery process was completed by the Court Amin. It is also his submission that the order granting police aid to respondents to execute the decree is not revisable under Section 115 of C.P.C. In support of his contention, he has relied on the judgment in the case between D.Kyathappa Vs. K.L.Sidaramappa^[2] . It is also vehemently submitted by the learned counsel for respondents 1 to 4 herein that the order of police aid is an interlocutory order and is not revisable. It is also his submission that the petitioner herein, having withdrawn the appeal filed by him before the II Additional District Judge, Srikakulam, and having kept quiet from 12.05.2009 to 29.05.2009 and having not taken any steps to intimate the interim stay order passed by this Court in his favour on time to the Court below, he is guilty of laches and it is clear that

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he has not come to the Court with clean hands. It is also his submission that there are huge arrears of rent payable by the petitioner herein to respondent 1 to 4 herein.

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13. In reply, Sri K.Bheema Rao, learned counsel for the petitioner herein submitted that this Court, in Contempt Case No.797 of 2009 filed by the petitioner herein seeking to punish the respondents under the Contempt of Court Act for disobedience of the orders passed in C.R.P.M.P.No.3203 2009 in C.R.P.No.2295 of 2009 dated 28-05-2009, had categorically found that the Court Amin is guilty and imposed a fine of Rs.2,000/- and this clearly shows that the Court Amin acted illegally and as such, the delivery of possession is illegal.

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14. In view of the above rival contentions, the points that arise for consideration in this revision is (1) Whether the order of issuing delivery warrant dated 30.04.2009 of the Court below is valid or whether the same is liable to be set aside; (2) Whether police aid to respondents 1 to 4 herein to execute the decree is sustainable in the facts and circumstances of the case.

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15. It is not in dispute that respondents 1 to 4 herein claimed that they have purchased the plaint schedule building from the other respondents under a registered sale deed dated 03.05.2006 for a sum of Rs.14,00,000/-. Thus, they have been claiming their right through the original decree-holders. Admittedly, the decree obtained by the other respondents, who are the legal heirs

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of the original decree-holders, has not been assigned in favour of respondents 1 to 4. So the question that arise for consideration is whether respondents 1 to 4 herein can file an E.P.

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16. In this context, it is apt to extract Section 146 of C.P.C. which reads as follows:-

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“146. Proceedings by or against representatives:- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”

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17. Thus, it is clear that when the respondents have been claiming their right through the original decreeholders, the proceedings may be taken by them or an application may be made by or against any person claiming under him. Thus, it is clear that either the original decreeholders or any person claiming under them may initiate the proceedings.

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18. Order XXI Rule 16 C.P.C. reads as under:-

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“16. Application for execution by transferee of decree:- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the

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decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder;

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Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution;

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Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

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19. Admittedly, in the instant case, the decree seems to have not been assigned in favour of respondents 1 to 4, but they are transferees, therefore, it appears that explanation to Order XXI Rule 16 clarifies the position, which reads as follows:-

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“Explanation – Nothing in this rule shall affect the provisions of Section 146 and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment to the decree as required by this rule.”

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20. Therefore, the above explanation makes it clear that when a separate assignment of the decree is

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required under Order XXI Rue 16 C.P.C., the transferee of rights in the property may apply for execution of the decree. In view of this explanation to Order XXI Rue 16 C.P.C. read with Section 146 C.P.C., it is clear that respondents 1 to 4 herein can file E.P. for execution of the decree obtained by the other respondents, who are the original decree-holders. Thus, a transferee or rights in the property may apply for execution of the decree without a separate assignment to the decree under Section 146 C.P.C. read with explanation to Order XXI Rule 16 C.P.C.

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21. Learned counsel for respondents 1 to 4 had relied on the judgment in D.Rasaranjan’s case (1 supra). In that case, the land in dispute was acquired under Land Acquisition Act, 1894. The original owner entered into agreement to sell the lands with one Seshagiri Rao and subsequently, the claimants relinquished their claim in favour of said Seshagiri Rao and gave affidavit to that effect. Subsequently, compensation was enhanced. Meanwhile, said Seshagiri Rao died and his Legal Representatives filed E.P. Some of the claimants have also filed applications for realization of amounts in their favour. The question that arose for consideration was whether the Legal Representatives of Seshagiri Rao can execute the decree without assigning the decree in their favour. In this context, a Division Bench of this Court, after referring to number of decisions and also the judgments of the Apex Court, held as follows:-

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“…the transfer of interest in the property is sufficient to enable the

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executing Court to proceed with the execution without a separate assignment of the decree.”

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22. Learned counsel for respondents 1 to 4 herein had also relied upon the judgment in the case between Nareddy Raji Redy and others Vs. Pasula Enkamma and others^[3] . In that case, a decree for perpetual injunction was passed in favour of the plaintiff and against the defendants. One of the original decree-holders assigned the decree through a registered sale deed. The trial Court dismissed the E.P. on the ground that the decree for injunction is personal in nature and does not run with the land and, therefore, it cannot be assigned. In the circumstances, this Court held as follows:-

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“The maxim that personal right of action dies with the person, has no application when the suit for perpetual injunction is decreed against a third person and after the plaintiff or the decree-holder dies it cannot be said that the suit is abated or the decree on transfer or the land is extinguished. On a bare perusal of Section 146 and Order 21 Rule 16 of the Code of Civil Procedure, it is revealed that the decree is not confined to any particular kind of decree, but it includes decree for perpetual injunction also. It would not be out not place to mention that if in the aforementioned circumstances the decree is made inexecutable, then, with the death of the decree holder or transfer of the property and assignment of the decree, the

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judgment-debtor would get a licence to interfere with the peaceful enjoyment of the property in question by the successor or transferee who would be again driven to file a fresh suit and that may be an endless litigation.”

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23. Learned counsel for respondents 1 to 4 had also relied upon the judgment in the case between Kesari Goutham Reddy Vs. Velpula John Victor Macaulay^[4] , wherein, this Court held as follows:-

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“A decree passed against the defendant is available for execution against the transferee or assignee of the defendant judgment-debtor and it does not any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the court.”

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24. On the other hand, the only judgment which was relied upon by the learned counsel for the petitioner herein is in the case between T.Saraswathi Prasad Singh and G.V.Kalavathy and others^[5] . In that case, an E.P. was filed praying to order delivery of possession of E.P.Schedule Property by evicting the judgment-debtor. Having regard to the facts and circumstances of the case, this Court observed that since there is no direction in the decree for delivery of possession, the purchasers from the decree-holder cannot seek delivery of possession by way of execution. This Court further held that when there are rival

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claims, without deciding the rights and title of the disputed property, the delivery of possession ought not to have ordered. In the instant case, the suit was filed by the original decree-holder – Smt. Prathi Satyabhama was decreed on 02.02.2000. As seen from the contents of the decree, it is clear that the defendant was specifically directed to vacate the petition schedule building within three months from the date of its judgment. Admittedly, the judgment of the lower Court became final, when the petitioner himself has withdrawn the appeal filed by him challenging the decree. Therefore, it cannot be said that there is no direction for delivery of possession in the original decree. In view of the above facts, the judgment in T.Saraswathi Prasad Singh’s case (5 supra) is clearly not applicable to the facts of the case on hand.

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25. The second ground urged by the revision petitioner is that no notices were served on him before ordering the delivery of possession. Under Order XXI Rule 22 C.P.C., notices to show cause against the execution shall be issued against whom execution is applied, where an application for execution is made more than two years after the date of the decree. Admittedly, the decree was passed on 02.02.2000 in O.S.No.9 of 1997. Subsequently, an appeal in A.S.No.61 of 2000 was filed challenging the said decree, which was dismissed on 20.02.2008. Thus, the judgment and decree of the trial Court stands merged with the judgment of the lower appellate Court and, therefore, for all practical purposes, the date of passing of judgment by the lower appellate Court, i.e., 20.02.2008 has

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to be taken into consideration. Thus, if the date of passing of judgment by the lower appellate Court, i.e., 20.02.2008 is taken into consideration, it is clear that E.P. is filed within a period of two years and is well within the period of limitation.

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26. In D.Kyathappa’s case (2 supra), a Division

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Bench of this Court held as follows:-

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“It is well settled that jurisdiction of the High Court under Section 115 is supervisory but it does not confer any right on the litigant. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Clauses (a) to (e) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can, be properly invoked.”

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27. Therefore, in the instant case, the E.P. filed by respondents 1 to 4 herein is maintainable and since it is filed within a period two years, no notice is required to the judgment-debtor (petitioner herein). Therefore, it cannot be said that the order passed by the Court below is contrary to

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law or has vitiated by any material irregularity.

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28. In view of the above discussion, I do not see any illegality or irregularity in the order passed by the Court below in ordering delivery of the plaint schedule building to respondents 1 to 4 herein. The revision is devoid of merits and is liable to be dismissed.

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29. In the result, the Civil Revision Petition stands dismissed. There shall be no order as to costs.

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_________________________ Justice B.Chandra Kumar 13^th September, 2011 Bvv

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[1] 1986 (1) ALT 226 [2] 2002 (6) ALT 435 [3] 1997 (2) ALT 481 [4] 2007 (6) ALT 20 [5] 2003 (2) ALT 39 (D.B.)

Dr. Madina Balakrishna v. Malla Krishna Rao

Case brief

What is this about?

What did the court decide?

Dr. Madina Balakrishna v. Malla Krishna Rao

Case brief

What is this about?

What did the court decide?

What the court decided

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