HONOURABLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.477 of 2021
ORDER:-
The present Revision Petition is filed aggrieved by the
Orders dated 15.03.2021 passed in E.A.No.139 of 2011 in
E.P.No.193 of 2009 in O.S.No.160 of 2002 on the file of the
Court of Principal Junior Civil Judge, Bapatla.
2. Heard Mr. N.Sriram Murthy, learned counsel for the
petitioner and Mr. O.Manohar Reddy, learned counsel appearing
for Mr. V.Satya Prasad, Advocate, for the 2nd respondent. None
appeared on behalf of the 1st respondent.
3. The relevant facts for disposal of the present Civil Revision Petition may briefly be stated as follows:
The petitioner herein is the defendant in the above referred suit. The 1st respondent herein filed the said suit seeking a Decree for Permanent Injunction, restraining the defendant and his men from interfering with his possession and enjoyment of Plaint Schedule Property and for mandatory injunction, directing the defendant to remove the constructions made thereon and in default to get the same removed through process of Court. The 2nd respondent herein was added as 2nd plaintiff as per the Orders dated 22.03.2004 in I.A.No.122 of 2004. The said suit was decreed by Judgment dated 08.10.2004, against which, the petitioner/defendant/Judgment Debtor(for short 'J.Dr') preferred A.S.No.64 of 2004 on the file 2 NJS,J CRP No.477 of 2021 of the Court of the Senior Civil Judge, Bapatla, and the same was dismissed on 07.04.2009. The petitioner carried the matter by way of further Appeal vide S.A.No.1364 of 2011 and the same was dismissed for default by an Order dated 27.12.2013. Seeking execution of the Decree, the 2nd respondent/Decree Holder (for short 'D.Hr.') herein filed the E.P.No.193 of 2009 and the same was allowed by an Order dated 17.06.2010. The Executing Court directed the Court Amin to remove the constructions after giving 15 days time to the petitioner/J.Dr. The Court Amin on 19.07.2010 informed the petitioner/J.Dr., that the warrant as per the Orders of the Court would be executed. However, the petitioner/J.Dr., prevented the Court Amin from executing the warrant. Under the said circumstances, the 2nd respondent herein filed E.A.No.139 of 2011 seeking to prosecute the petitioner/J.Dr., for his willful, deliberate disobedience towards the Court Order and preventing the Court Amin and D.Hr., from executing the warrant and to punish him in accordance with Law. The petitioner/J.Dr., filed counter and resisted the said application. In the said proceedings, the 2nd respondent herein was examined as P.W.1, the mediator was examined as P.W.2, the Court Amin as P.W.3 and Exs.P1 to P4 were marked. The petitioner/J.Dr., was examined as R.W.1 and got marked Ex.R1. The learned Executing Court, after considering the evidence, both oral and documentary, by an Order dated 15.03.2021, allowed the above said application by committing the 3 NJS,J CRP No.477 of 2021 petitioner/J.Dr., to Civil Prison for a period of one month for disobedience of the Court Order. Hence, the present Revision Petition.
4. The main contention of the learned counsel for the petitioner/J.Dr., is that after filing the suit, the 1st respondent/1st plaintiff alienated the Suit Schedule Property by a Registered Sale Deed dated 26.07.2002, which came to the knowledge of the petitioner only before filing the present Revision Petition and in view of said transaction, the 1st respondent had no subsisting interest in the suit property. He submits that the D.Hrs., suppressed the said material fact and obtained a Decree by playing fraud on the Court. It is his submission that as the D.Hrs., have no title over the property in question after execution of the Sale Deed and as they played fraud, the Decree itself is a nullity and in-executable. In support of his contention that the Decree and Judgment obtained by fraud is as nullity, the learned counsel had placed reliance on the decisions of the Hon'ble Supreme Court in A.V.Papayya Sastry and others v. Government of Andhra Pradesh and Others1, S.P.Chengalvaraya Naidu v. Jagannath2 and Judgment in Civil Appeal No.11491 of 2016 dated 02.01.2017 etc. It is the further contention of the learned counsel that the 1st respondent did not file the E.P.Proceedings and the 2nd respondent alone had initiated the same. While referring to 1 (2007) 4 SCC 221 2 (1944) 1 SCC 1 4 NJS,J CRP No.477 of 2021 Rule 32 of Civil Rules of Practice, the learned counsel would further submit that along with the E.P., the 2nd respondent did not file the alleged General Power of Attorney, much less an affidavit of the D.Hr.No.1. He submits that the 2nd respondent was authorized only to conduct the suit on behalf of the 1st respondent and nothing beyond that. As the filing of E.P., is an Act which is not authorized by the 1st respondent/D.Hr., the learned counsel submits that the very Execution Proceedings and the consequential Order thereon are vitiated. The learned counsel places reliance on a decision reported in Narmada Prasad v. Bedilal Burman3 and further submits that the power of attorney cannot depose in place of the principal/1st respondent/D.Hr. Referring to the Execution Petition, he also submits that the same was filed by the 2nd respondent alone and it does not bear the signature of 1st respondent/D.Hr. He submits that non-appearance of the 1st respondent in the present proceedings despite service of notice would go to show that the obstruction allegedly caused to the D.Hr/1st respondent is not correct. While submitting that for executing the warrant, it is the practice to seek the assistance of Village Revenue Officer/Sarpanch of the Village, he further contends that in the present case, no such procedure was adopted and on the other hand, the panchanama with regard to alleged obstruction was conducted in the presence of some 3rd parties who are not even the neighbours. He further submits that if at all there is 3 AIR 2019 MP 234 5 NJS,J CRP No.477 of 2021 obstruction to the execution of warrant, the same would have been reported to the police, which was not done in the present case. Contending that the 1st respondent/D.Hr., was not at all present at the time of alleged execution of the warrant and the record is concocted, he submits that the Executing Court committed an error in opining that D.Hr., clearly established his case against the J.Dr., without any valid basis and the Order under challenge is therefore liable to be interfered with. He also submits that Section 74 of Code of Civil Procedure (for short 'C.P.C.') is not applicable as the suit is not for possession of the property and as such E.P.Proceedings invoking the said provision is not maintainable. Making the said submissions, the learned counsel would submit that the Order under Revision is liable to be set aside, as the same suffers from material irregularities.
5. On the other hand, the learned counsel for the respondents submits that the 2nd respondent was impleaded as party-plaintiff No.2 and the same was not objected to by the petitioner/J.Dr., and a Decree was passed in favour of the respondents herein on 08.10.2004. He submits that the said Judgment and Decree was confirmed and attained finality on dismissal of the Second Appeal filed by the petitioner/J.Dr. He further submits that though, as per the Decree three months time was granted to the petitioner/J.Dr., to hand over the Suit Schedule Property after removing the structures/constructions raised by him, the petitioner/J.Dr., had not complied with the 6 NJS,J CRP No.477 of 2021 Judgment and Decree and on the other hand, obstructed the Court Amin when the warrant was sought to be executed, pursuant to the Orders dated 17.06.2010 passed in E.P.No.193 of 2009, which was not challenged. He submits that in fact the J.Dr., along with a mob came, prevented the execution of warrant and the allegations made in the affidavit filed in support of the E.A., in this regard were not contradicted. He submits that the petitioner/J.Dr., having lost the matter and suffered an Order of execution of the Decree, filed the Revision Petition by raising several pleas, for the first time and the same is not permissible. With regard to the contention that the 2nd respondent was authorized to conduct suit proceedings only but not E.P., proceedings, he submits that the same was in fact negatived by the Executing Court on the earlier occasion in E.P.No.193 of 2009 and therefore, the said contention is liable to be rejected.
6. The learned counsel would also contend that the submission with reference to Section 74 of C.P.C., is misconceived and further that as the execution of Decree in respect of immovable property is resisted, the application is maintainable. The learned counsel submits that the Executing Court, recorded its findings with regard to the obstruction to the execution of the Decree, on appreciation of evidence and in such circumstances, no interference is warranted. The learned counsel would also contend that the Revision Petition under Article 227 is not maintainable and that even otherwise, the 7 NJS,J CRP No.477 of 2021 Court will not re-appreciate the evidence in exercise of powers under Article 227 of the Constitution of India. Making the said submissions, the learned counsel seeks dismissal of the Revision Petition.
7. In reply, the learned counsel for the petitioner submits that as E.P., is pending, the present Civil Revision Petition under Article 227 of the Constitution of India is maintainable. He submits that the plea regarding the suppression of execution of Sale Deed is not refuted and the same can be questioned in any collateral proceedings.
8. This Court has given a thoughtful consideration to the contentions advanced by the learned counsel for both sides, gone through the material on record and the following points fall for consideration:
1. Whether the Order under Revision is liable to be set aside on the ground that the decree is a nullity?
2. Whether the E.P.Proceedings as initiated by the 2nd respondent is not maintainable and Order under challenge is liable to be set aside for the said reason?
3. Whether the present Proceedings under Article 227 of the Constitution of India are maintainable? If so, whether the Order under Revision warrants interference by this Court?
Point No.1:
9. As regards the main contention of the learned counsel for the petitioner to the effect that the Decree itself is a nullity as it is allegedly obtained by playing fraud, and the consequential 8 NJS,J CRP No.477 of 2021 proceedings are vitiated, the said plea was raised for the first time in the present proceedings. Though, there is no dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the decisions relied on by the learned counsel for the petitioner, unless, the decree is declared as nullity by a Competent Court, it remains executable. The scope of present proceedings is limited to the extent of examining as to whether the Order under Revision suffers from any jurisdictional error or perversity. This Court cannot go into the aspect as to the validity of the Decree and examine the same. Accordingly, the contention raised in this regard is rejected. Point No.2:
10. Insofar as the second contention with regard to the E.P. Proceedings initiated by the 2nd respondent to the effect that he is only authorized to conduct the suit on behalf of the 1st respondent, but not the E.P. Proceedings, the same deserves no consideration. Firstly, the 2nd respondent was arrayed as party to the suit as 2nd plaintiff, pursuant to the Orders dated 22.03.2004 and the same was not objected to. By virtue of the Judgment dated 08.10.2004, a Decree was also passed in favour of the 2nd respondent herein along with the 1st respondent. The said Judgment and Decree was confirmed in the appeal A.S.No.64 of 2004 and the subsequent Second Appeal, challenging the said order also ended in dismissal. In such circumstances, it is not open to the petitioner/J.Dr., to raise any issue with regard to competency of the 2nd 9 NJS,J CRP No.477 of 2021 respondent to maintain the present application. Further, as contended by the learned counsel for the 2nd respondent, the attempt made by the petitioner/J.Dr. in the E.P.Proceedings i.e., E.P.No.193 of 2009, that the G.P.A., executed in favour of the 2nd respondent was applicable to the suit proceedings only, but not for E.P.Proceedings, was rejected and the same was not challenged by the petitioner/J.Dr. The decision referred 3rd supra, is of no assistance to the petitioner against the back drop of the factual position of the present case. Therefore, submissions made by the counsel for the petitioner in this regard are rejected.
11. One of the contentions advanced on behalf of the petitioner is that the application as is filed under Section 74 of the C.P.C., is not maintainable as the Decree is not for possession of the immovable property. This Court is not inclined to accept the same as resistance by the petitioner/J.Dr., is to the execution of the decree in respect of immovable property. Accordingly, Point No.2 is answered against the petitioner. Point No.3:
12. With regard to maintainability of the present Civil Revision Petition is concerned, as the Execution Proceedings have attained finality, this Court is of the view that the present Revision Petition is not maintainable. Be that as it may. 10
NJS,J CRP No.477 of 2021
13. In the present case, the Executing Court had considered the matter by appreciating the evidence of P.W.3-Court Amin and recorded categorical findings with reference to his report that the petitioner/J.Dr., resisted the execution of warrant. The obstruction caused by the petitioner/J.Dr., is not in dispute.
14. In the cross examination, he admitted that he prevented the Court Amin, but stated that he obstructed as measurements are not tallying. If that be so, steps should have been taken on receipt of notice from the Court Amin. No such attempt was made. No such plea was taken in the Counter, either. In the absence of the same, the acts of the petitioner in causing obstruction to the implementation of the Court Order cannot be countenanced. As mentioned earlier, the petitioner/J.Dr., lost the matter in three courts and matter had attained finality. His objections in the E.P., were rejected. He had no right or authority to remain in the suit land. It is incumbent on him to honour the decree and remove the constructions made by him. However, he failed do so and on the other hand prevented the Court Amin as established by oral and documentary evidence on record. The only aim and intention of the petitioner/J.Dr., appears to be to defeat the decree, one way or the other. He had obstructed the Court Amin from executing the Warrant and thereby came in the way of implementation of the Court Order. As mentioned earlier, in cross examination he had tacitly admitted the same, which is sufficient to hold him guilty of 11 NJS,J CRP No.477 of 2021 disobedience of the Order of the Court. The learned Executing Court having been satisfied that the petitioner/J.Dr., failed to remove the constructions from the E.P.Schedule Property, though sufficient time to demolish the construction was granted, recorded a categorical finding that the J.Dr., caused obstructions for removal of the constructions. In view of the said finding, based on material on record, this Court cannot interfere with the same by re-appreciating the evidence which is not permissible, in a proceeding under Article 227 of the Constitution of India. Further, there is no perversity in the order under Revision as the Executing Court have gone through the entire material available on record and arrived at the conclusions by recording cogent reasons. As rightly contended by the learned counsel for the respondents, the scope of interference in proceedings under Article 227 of the Constitution of India is limited and this Court finds no jurisdictional error in the Order under Revision.
15. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.
Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.
____________________ NINALA JAYASURYA, J 06.05.2022 BLV 12 NJS,J CRP No.477 of 2021 HON'BLE SRI JUSTICE NINALA JAYASURYA Civil Revision Petition No.477 of 2021 Dated 06.05.2022 BLV