Nallamalli Venkata Kiran, vs Federal Bank Limited,
2021 Latest Caselaw 3085 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                  SECOND APPEAL No. 140 of 2021

JUDGMENT :

This second appeal is presented against the decree and judgment

dated 23.03.2020 in A.S.No.145 of 2014 on the file of the Court of the

learned I-Additional District Judge, Prakasam at Ongole. It was inturn

preferred against the decree and order in E.A.No.218 of 2009 in

E.P.No.214 of 2000 in O.S.No.85 of 1998 dated 31.07.2014.

2. The 1st respondent instituted O.S.No.85 of 1998 on the file of

the Court of the learned Principal Senior Civil Judge, Ongole for recovery

of money on the foot of a mortgage against the 2nd respondent and

another. The security offered towards this mortgage was a house in

Ongole town bearing Door No.23-1-118 of 600 Sq.ft. and it is a two

storeyed RCC building. The decrees passed in this suit were subject

matter of E.P.No.214 of 2000 on the file of the same Court. The rear

portion of the house was subject matter of this execution petition. This

property was brought to sale and the 3rd respondent was successful

bidder in the auction, who purchased this property in that auction.

3. The appellants are the son and two daughters of the 2nd

respondent. They filed E.A.No.218 of 2009 in E.P.No.214 of 2000 under

Order-21, Rule-97 CPC to declare them as rightful owners having 3/4

share in the property, which was subject matter of the execution

proceedings and that the 3rd respondent auction purchaser is not entitled

to disturb their constructive possession of the same.

4. The claim of the appellants to offer resistance is based on two

grounds - (1) that the 2nd respondent did not have absolute and alienable MVR,J S.A.No.140 of 2021

rights in respect of this property and that it was subject matter of

registered Will dated 30.09.1992 executed by Sri N.V.Venkateswarlu, Son

of Sri Sreeramulu. He is the father of this 2nd respondent. Schedule-C of

this Will relates to the property concerned to this matter. (2) that the debt

in question contracted was not for legal purposes by the 2nd respondent

and in the partition suit in O.S.No.192 of 2000, their rights stood

crystalised by the partition decree dated 12.11.2002 in respect of three

shares allotable to them out of this property.

5. The 3rd respondent auction purchaser and the 1st respondent/

D.Hr. resisted the petition mainly contending that it is a collusive attempt

while citing the instances in filing O.S.No.192 of 2000 for partition by the

petitioners, O.S.No.15 of 2006 filed by the 1st appellant for partition of this

property and E.A.No.741 of 2005 filed under Section 47 CPC by the

petitioners. A reference is also made by them to O.S.No.181 of 1997 filed

by one Smt. Seethamahalakshmi for specific performance against the 2nd

respondent in respect of the front portion of the same house bearing Door

No.118. Thus, they questioned the very maintainability of an application

of this nature under Order-21, Rule-97 CPC before the Executing Court.

6. Evidence was let in by the parties, both documentary and oral.

7. The Executing court rejected the contention of the petitioners as

a collusive attempt mainly and also referring to the litigation resorted

earlier by the appellants.

8. The appellate Court, on reappraisal of the material, agreed with

the conclusions drawn by the Executing Court and thereby confirmed the

decree and order of the Executing Court.

MVR,J S.A.No.140 of 2021

9. Sri Chakkilam Venkateswarlu, learned counsel for the appellants,

strenuously contended that the findings recorded by both the Courts

below are perverse and that the appellate Court went beyond the

requirement in raising such issues like nature of the loan being

Avyavaharika debt and the doctrine of pious obligation. Commenting on

the nature of the order of the Executing Court that the appellants did not

meet the requirements of Order-21, Rule-97 CPC to raise an obstruction

and to hold that the petition so filed could not be maintained, it is

contended that since there are substantial questions of law requiring

consideration of this Court, the second appeal be admitted. In this

context, the learned counsel contended that when the partition suit

declared the rights, shares as well as interest of the petitioners to the

property in dispute, they cannot be overlooked and that reference to

earlier litigation including the petition under Section 47 CPC as well as the

result therein by the Courts below is quite improper.

10. In the backdrop of nature of this matter, it has to be

determined- "Whether this case is within the purview and application of

Section 100 CPC requiring consideration?

POINT:

11. Many facts in this case are admitted. Relationship among the

appellants and the 2nd respondent is a crucial factor, which has glaring

effect on the nature of the claim set out by the petitioners. The intention

of the petitioners obviously is to retain that part of the house in question

to which they stated that they have 3/4 share. Thus, an obstruction is

sought to be offered to the effort of the 3rd respondent-auction purchaser

to get delivery of possession of the house in dispute. In O.S.No.192 of MVR,J S.A.No.140 of 2021

2000 on the file of the Court of the learned Additional Senior Civil Judge, a

partition decree was passed for partition declaring entitlement of the

appellants to three (03) shares out of four (04) in this house. The material

on record makes out that a final decree application is pending before the

concerned court.

12. O.S.No.15 of 2006 filed for similar relief of partition was

dismissed on 22.09.2008 for default. It has become final.

13. E.A.No.741 of 2005 filed under Section 47 CPC by the

appellants was also dismissed by the Executing Court. However, it is

stated by the learned counsel for the appellants that the dismissal was on

a technical ground to the effect that the application of such nature could

not have been initiated by the appellants being 3rd parties to the decrees

in the suit.

14. These instances, as rightly observed by both the Courts below,

point out the relentless effort of the appellants. The object in making such

effort was apparently to wriggle the 2nd respondent out of the situation he

was facing, in the execution proceedings. There is justification for both

the Courts below to describe these actions as collusive in nature to stall

the execution proceedings. The Executing Court also took into

consideration the long intervals, relating to filing the suit in the year 1998,

execution petition in the year 2000 and the application under Order-21,

Rule-97 CPC in the year 2009. It is also a relevant factor in considering

the nature of the attempt by the appellants.

15. Thus, on such questions of fact, both the courts below

consistently had drawn conclusions concurrently.

MVR,J S.A.No.140 of 2021

16. The claim based on registered Will dated 30.09.1992 of the

appellants was also rejected by the Courts below on the premise that

original Will was not produced and that there is no proof in that direction.

Consistent and concurrent findings in this respect are on record.

17. The nature of debt has no bearing nor could have been

considered by the learned appellate Judge in the light of the decrees

against the 2nd respondent.

18. Thus, predominantly, the matter is based on disputed

questions of fact and both the Courts below recorded clear findings

thereon.

19. However, competence of the petitioners to invoke Order-21,

Rule-97 CPC, as held by the Executing Court and on such premise an

application under Order-21, Rule-97 CPC could not have been filed by

them, is not correct. Law is declared in this context by Hon'ble Supreme

Court in Ashan Devi and another vs. Phulwasi Devi and others1. A

third party is as much competent to raise such an objection and there is

no necessity to wait for continuance in execution proceedings or to raise

such an objection when the property is sought to be delivered. The above

ruling relied on by the learned counsel for the appellants is apt and dispels

any doubt relating to maintainability of an application of this nature.

20. Be it noted that the appellate Court recorded in its judgment

that the property was delivered to the 3rd respondent on 13.08.2014 upon

the 1st appellant voluntarily removing movable property from the house in

dispute vacating the same and reporting no objection to handover its

. AIR 2004 SC 511 MVR,J S.A.No.140 of 2021

possession. Certified copies of the delivery warrant and delivery receipt

reflected this situation, according to he learned appellate judge. This fact

is not controverted on behalf of the appellants. Therefore, delivery of the

property in dispute was also effected on 13.08.2014 itself. Thus, it is an

instance of abatement of such obstruction and withdrawal at the instance

of the 1st appellant. It is also a factor of significance.

21. Therefore, in the circumstances found, the substantial

questions of law set out in the second appeal, cannot form debatable

issues and therefore consideration or determination of the same, did not

fall within purview and ambit of section 100 CPC.

22. Therefore, this Court is satisfied that there are no questions of

law or of substantial nature in this case for consideration and

determination in the face of concurrent findings recorded by the Courts

below on facts. Therefore, this second appeal has to be dismissed at

admission stage.

23. In the result, the second appeal is dismissed, at admission

stage, confirming the decrees and orders of both the Courts below. No

costs.

As a sequel, all pending miscellaneous petitions stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:18.08.2021 RR MVR,J S.A.No.140 of 2021

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL NO.140 of 2021

Dt:18.08.2021

RR