D Puspa Laeelavathi vs Ballarapu Snakara Reddy
2021 Latest Caselaw 690 AP

      HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

               Civil Revision Petition No.182 of 2020
ORDER:

The challenge in this C.R.P. at the instance of the

petitioner/judgment debtor is to the order dated 24.08.2019 in

E.P.No.452/2014 in O.S.No.75/2004 passed by the learned Principal

Senior Civil Judge, Anantapuramu whereby and whereunder the

learned Judge while discarding the contentions of the judgment debtor

allowed the execution petition and ordered the sale of E.P. schedule

property.

2. The respondent/plaintiff filed O.S.No.75/2004 against the

judgment debtor on the file of the learned Principle Senior Civil

Judge, Gooty and obtained money decree and got transferred the

decree to the Court of the learned Principal Senior Civil Judge,

Anantapuramu and filed E.P.No.452/2014 seeking to execute the

decree by conducting auction sale of the E.P. schedule mentioned

property for realisation of the E.P. amount. By order of the execution

Court the E.P. schedule property was attached on 08.01.2015 by the

Court Ameen. On receiving the notice, the judgment debtor appeared

and inter alia contended in the E.P. that she has no saleable title and

interest over the E.P. schedule property. The execution Court

negatived her contention observing that from the Field Assistant

report dated 25.02.2016 the E.P. schedule property was attached on

01.08.2006 and therefore, execution can be processed and interested

party, if any, may come and file claim petition at an appropriate stage.

Hence, the Civil Revision Petition.

3. Heard the arguments of Sri V.Nitesh, learned counsel for

petitioner, and Sri M.Karibasaiah, learned counsel for the respondent.

4. The main plank of the argument of the learned counsel for

petitioner is that the execution Court erred in holding that the

attachment dated 01.08.2006 made in earlier E.P.No.105/2006 is still

in subsistence. He would argue that the ex parte decree was set aside

on the petition filed by the petitioner and thereby E.P.No.105/2006

was set aside and consequently the attachment, if any, made had also

fallen to the ground. That was why, after filing the present

E.P.No.452/2014, the respondent/decree holder got the E.P. schedule

property again attached on 08.01.2015. However, during the

interregnum period, the judgment debtor due to her family conditions,

has executed a registered Gift Deed dated 26.04.2011 in favour of her

son in respect of the E.P. schedule property and therefore, as on the

date of filing of E.P.No.452/2014 and on the date of attachment made

in the said E.P., the judgment debtor had no legal title over the said

property as it was vested in her son. However, the execution Court

without considering these facts simply allowed the E.P. on the

observation that the interested party may approach the Court with a

claim petition at the appropriate stage. He argued that the order of the

lower Court would pave way for the multiplicity of the proceedings in

addition to unnecessary prolongation of the execution proceedings.

5. Per contra, Sri M.Karibasaiah, learned counsel for the

respondent/decree holder, would argue that the attachment made

during the previous execution petition continued and after filing the

present E.P., once again the E.P. schedule property was got attached

as an abundant caution and hence, the settlement deed executed by the

judgment debtor with a malice intention to defeat the E.P. proceedings

will have no impact on the E.P. proceedings.

6. As can be seen from the impugned order, the execution Court

no doubt mentioned that the E.P. schedule property was attached on

01.08.2006. However, there is no further observation as to whether

the said attachment, which was made during the earlier execution

proceedings, continued even after dismissal of the earlier

E.P.No.105/2006 or not. The copy of the Gift Deed filed by the

petitioner/judgment debtor shows that the judgment debtor executed

the registered Gift Settlement Deed in favour of her son on

26.04.2011. In that view, the crucial question is whether the

attachment, said to be made on 01.08.2006 in E.P.No.105/2006,

continued or not even after dismissal of the said E.P. It is to be noted

as per Order XXI Rule 57 CPC an attachment made in the execution

petition will survive in spite of the execution petition is dismissed for

any reason provided if the executing Court passes an order directing

that the attachment made shall continue. In the instant case, the

impugned order only reads that the E.P. schedule property was earlier

attached on 01.08.2006. That attachment seems to be made during the

pendency of E.P.No.105/2006. However, there is no further

observation in the impugned order as to whether the said attachment

continued in terms of Order XXI Rule 57 CPC after dismissal of

E.P.No.105/2006.

7. In the above circumstances, I consider it apposite to set aside

the impugned order and remand the matter to the execution Court to

consider the objections of the judgment debtor regarding her title in

respect of the E.P. schedule property as on the date of filing of

E.P.No.452/2014 and to pass suitable order.

8. Accordingly, this Civil Revision Petition is allowed and the

order dated 24.08.2019 in E.P.No.452/2014 passed by the learned

Principal Senior Civil Judge, Anantapuramu is set aside and the

matter is remitted back to the said Court with a direction to consider

the objections of the judgment debtor regarding her title in respect of

the E.P. schedule property as on the date of filing of E.P.No.452/2014,

and pass an appropriate order in accordance with law expeditiously.

No costs.

As a sequel, interlocutory applications, if any pending, shall

stand closed.

__________________________ U. DURGA PRASAD RAO, J 08.02.2021 MVA