Veeramreddy Vijay Kumar Reddy, vs Vandasi Rama Lingeswara Prasad,
2021 Latest Caselaw 4534 AP

             THE HON'BLE SRI JUSTICE A.V.SESHA SAI

          CIVIL REVISION PETITION No.1104 OF 2021

ORDER:

Heard Sri N.Ashwani Kumar, learned counsel for the revision

petitioners and Sri Venkateswarlu Chakkilam, learned counsel for

respondent Nos.1 to 3, apart from perusing the material available

on record.

2. Challenge in the present Civil Revision Petition, filed

under Article 227 of the Constitution of India, is to the docket order

dated 06.10.2021 passed by the Court of the III Additional District

Judge, Rajampet, in E.A.S.R. No.1391 of 2021 in E.P. No.106 of

2020 in O.S. No.1 of 2019. Petitioners in the present Revision are

the decree holders, who instituted O.S. No.1 of 2019 against

respondent Nos.4 and 5 for specific performance of agreement of

sale. The said suit was decreed on 30.01.2020, directing execution

of sale deed and the decree holders/petitioners herein filed E.P.

No.106 of 2020 on 03.02.2021 for enforcement of the decree.

Respondent Nos.1 and 2 herein, who are the third parties to the

suit, filed an Execution Application, vide E.A.S.R. No.1391 of 2021

on 07.09.2021 under Order 21 Rule 97 of the Code of Civil

Procedure for the following reliefs:

"The petitioners therefore pray that the Hon'ble Court may be pleased to pass an order and decree as follows in their favour and in favour of the 5th respondent against the respondents 1 to 4:

a. To declare that the 1st petitioner is the rightful owner and title holder of item No.2 of the schedule mentioned properties and the petitioners 2 and 3 and respondent No.5 are the rightful owners and title holders of item No.1 of the petition schedule property and consequently direct the respondents not to disturb their possession and enjoyment of the same and there by dismissing the present E.P. as meritless and not maintainable.

b. Costs of the petition, and c. Pass such other orders as the Hon'ble court deems fit and proper in the circumstance of the case."

3. Resisting the said E.A.S.R. No.1391 of 2021, the decree

holders/petitioners herein filed objections. On 13.09.2021, the

Executing Court passed the following order:

"Matter called through blue jeans. Petitioner represented that he filed stamp duty. For verification Call on 01.10.2021. SR.No.1391/09.09.2021 is returned as per office objection."

4. On 01.10.2021, the Executing Court, while observing

that E.A.S.R. No.1391 of 2021 was pending, posted the matter to

06.10.2021. On 06.10.2021, the Executing Court passed the

following order:

"EA./21 is pending. Call on 20.10.2021.

IA.230/2021. Heard the petitioner. Respondent 1 and 2 filed their objections by way of memo touching the merits. Merits cant be decided at this stage with out the pressure on other parties. Hence, registered the petition. Issue notice to R3 to R5 through court

and RP on payment of batta and also by way of paper publication on EENADU DAILY by 20.10.2021 meanwhile counter of R1 and R2. Call on 20.10.2021."

The said order is the subject matter of the present Revision.

5. The essence of the case of the petitioners, as advocated

by the learned counsel for the petitioners, is that the learned

Presiding Officer of the Executing Court, in the absence of the

compliance of the objections raised on E.A.S.R. No.1391 of 2021

filed by respondent Nos.1 and 2, ought not have numbered the said

application and the learned Judge grossly erred in ordering notice

to the petitioners by entertaining the E.A. filed by respondent Nos.1

and 2. It is also the submission of the learned counsel that the

E.P. Court ought to have considered the objections and should not

have entertained the application. He further contends that

E.A.S.R. No.1391 of 2021 is not maintainable and that the E.P.

Court ought not have entertained and ought not have numbered

the E.A., as the respondents herein suffered an order in I.A. No.383

of 2019 filed by them, seeking their impleadment as defendants in

the suit. It is also submitted further that the trial Court dismissed

I.A. No.383 of 2019 filed by respondent Nos.1 and 2 herein for their

impleadment, as such, the E.P. Court ought not have entertained

the application.

In support of his submissions and contentions, learned

counsel places reliance on the following judgments:

(1) Mohd. Hanif and others Vs. Mohd. Indress and others1.

(2) S.A.Babu Reddy Vs. Munireddy and others2.

6. On the contrary, strongly resisting the Revision, it is

submitted by the learned counsel for respondent Nos.1 to 3 that in

response to the objection raised by the Executing Court as to the

maintainability of the application under Order 21 Rule 97 C.P.C.,

the petitioners herein brought to the notice of the E.P. Court the

law laid down by the Hon'ble Supreme Court in Ashan Devi and

another Vs. Phulwasi Devi and others3 and the E.P. Court having

satisfied with the submissions of the learned counsel for

respondent Nos.1 and 2 and the judgment of the Hon'ble Supreme

Court referred to supra, numbered the E.A. as E.A. No.230 of 2021

on 06.10.2021 and issued notices to the petitioners herein. Docket

orders of various dates are placed on record by Sri N.Ashwani

Kumar, learned counsel for the petitioners. It is evident from the

same that on 13.09.2021, respondent Nos.1 and 2 herein filed

E.A.S.R. under the provisions of Order 21 Rule 97 C.P.R. and on

06.10.2021, the E.P. Court ordered to register the E.A. as E.A.

No.230 of 2021 and issued notices by categorically observing that

the objections as to the merits of the application cannot be decided

at that stage, i.e., at the stage of numbering the E.A.

7. The Hon'ble Supreme Court in Ashan Devi's case (3

supra) at paragraph No.18, held as under:

AIR 2019 Punjab and Haryana 123

2016(1) AKR Karnataka 147

AIR 2004 SC 511

"The question raised in that case was whether the Objector cannot claim adjudication of his claim being third party to the decree under execution until he is Actually disposed. The argument advanced was that application under Order XXI Rule 97 at the instance of Objector is not maintainable to the executing court because such application complaining 'resistance and obstruction' by the third party could be filed only by the Decree Holder under Order XXI Rule 97 of the Code. It was argued that the remedy of the third party to the executing court is only after he suffers dispossession in execution of the decree. Thereafter, he has to complain under Order XXI Rule 99 and seek adjudication of his claims and rights. This Court negative that contention and observed thus:-

'On the contrary the statutory scheme envisaged by Order XXI Rule 97 CPC clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI Rule 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievance, once and for all finally resolved in execution proceedings themselves.'"

8. In Rolla Ramakrishna Rao and others Vs. Challagalla

Brahmavathi4, a Division of the composite High Court held as

under:

"This appeal is filed by the judgment-debtors questioning the order of the Subordinate Judge, Kakinada, dismissing their petition under Order 21, Rule 90 C.P.C. even without numbering it. The judgment-debtors filed a petition under Order 21, Rule 90 C.P.C., questioning the sale of their house property on a number of grounds. The learned Judge heard the counsel for judgment-debtors and held that there were no grounds to register the petition and proceed with the enquiry and rejected the petition.

2. In this appeal, it is submitted by the learned counsel for the appellants that the learned Judge erred in not numbering the petition and dismissing it without numbering it. It is submitted that he should have held an enquiry before dismissing the petition. We find merit in this contention. It is true that under Order 21, Rule 90 Sub-rule (3) C.P.C. an application to set aside a sale need not be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. But, that is not the position here. Therefore, it could not be rejected under Sub-rule (3).

3. In the result, we set aside the order of the learned Subordinate Judge and direct him to number the petition and hold an enquiry after giving opportunity to both the parties. Accordingly the appeal is allowed, but in the circumstances of the case without costs."

AIR 1981 A.P. 29 (D.B.)

9. It is also brought to the notice of this Court that against

the orders in I.A. No.383 of 2019 dated 23.01.2020, the petitioners

herein filed C.R.P. No.407 of 2020 before this Court and the same

is pending consideration. It is also brought to the notice of this

Court by the learned counsel for the petitioners that in view of the

interim suspension granted by this Court, the E.P. Court is

proceeding further with registration of the document and delivering

of the same to the petitioners herein. Having regard to the facts

and circumstances of the case and the judgments referred to supra,

the judgments sought to be pressed into service by the learned

counsel for the petitioners would not render any assistance to the

case of the petitioners.

10. It is a settled and well-established principle of law that

unless the order impugned suffers from jurisdictional error or

patent perversity, the invocation of the jurisdiction of this Court

under Article 227 of the Constitution of India is impermissible. In

the instant case, this Court does not find any such contingencies,

as such, this Court is not inclined to meddle with the impugned

docket order. However, as there is a serious contest and objection

with regard to the maintainability of the present Execution

Application No.230 of 2021, the Executing Court shall, at the first

instance, pass orders on the maintainability of the said application,

as expeditiously as possible. It is also further made clear that till

such an order is passed, the process of handing over of the

documents, if already sent for registration, shall be deferred.

11. With the above observations, the Civil Revision Petition

is disposed of. There shall be no order as to costs of the Civil

Revision Petition.

As a sequel, interlocutory applications pending, if any, in this

Civil Revision Petition shall stand closed.

___________________ A.V.SESHA SAI, J Date: 08.11.2021 siva

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

CIVIL REVISION PETITION No.1104 OF 2021

Date: 08.11.2021

siva