Andhra Pradesh High Court - Amravati
Sarvepalli Venkata Radha Krishna vs Rudravaram Ananda Swaroop on 1 July, 2022
HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
CIVIL REVISION PETITION No.216 OF 2021
Between:
Sarvepalli Venkata Radha Krishna,
S/o Hanumantha Rao, Aged about 49 years,
R/o D.No.8-404(1), M.M. Donka, Ongole,
Prakasam District. .... Petitioner
And
Rudravaram Anand Swaroop, S/o Late R.V. Subbaiah,
Aged about 26 years, Occupation: Cultivation,
R/o Rudravaram Village, Santhanuthalapadu Mandal,
Prakasam District. .... Respondent
DATE OF ORDER PRONOUNCED: 01-07-2022
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
Marked to Law Reporters/Journals.
3. Whether Their ladyship/Lordship wish Yes/No
to see the fair copy of the Judgment?
____________________
NAINALA JAYASURYA, J
2
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*THE HON'BLE SRI JUSTICE NINALA JAYASURYA
+ CIVIL REVISION PETITION No.216 of 2021
%Date : 01.07.2022
# Sarvepalli Venkata Radha Krishna .... Petitioner
And
$ Rudravaram Anand Swaroop .... Respondent
! Counsel for the Petitioner : Mr.Sita Ram Chaparla
^ Counsel for Respondents : Mr.Naga Praveen Vankayalapati
< GIST : --
> HEAD NOTE : --
? Cases referred : --
3
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THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.216 of 2021
ORDER:
The present Revision Petition has been preferred against an Order
dated 13.10.2020 in E.A.No.2 of 2018 in E.P.No.75 of 2015 in O.S.No.220
of 2006 on the file of the Court of the Additional Senior Civil Judge,
Ongole, Prakasam District.
2. Heard Mr.Sita Ram Chaparla, learned counsel for the petitioner and
Mr.Naga Praveen Vankayalapati, learned counsel for the respondent.
3. The petitioner herein is the decree holder in O.S.No.220 of 2016.
The petitioner/plaintiff filed the said suit seeking a decree for delivery of
possession of the suit schedule properties. The said suit was decreed on
12.03.2015 against the respondent and other defendants. The
petitioner/plaintiff filed E.P.No.75 of 2015 seeking delivery of items
1 and 2 of the suit schedule properties and the same was allowed.
Pursuant to which, items 1 and 2 of the suit schedule properties were
delivered to the petitioner/decree holder on 22.06.2015 and 21.06.2018
respectively. In the meanwhile, the respondent/J.Dr.No.7 filed an
application seeking to set aside the ex parte decree dated 12.03.2015
and the same was allowed on 09.06.2017. Thereafter, he filed
E.A.No.2 of 2018 under Sections 144 and 151 of Code of Civil Procedure
(hereinafter referred to as "CPC") seeking to re-deliver possession of
items 1 and 2 of the suit schedule properties to him. The said E.A was
opposed by the petitioner/decree holder by filing a counter. The Court
below after considering the matter by an Order dated 13.10.2020 allowed
the said application with a direction to the petitioner/decree holder to re-
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deliver possession of items 1 and 2 of the suit schedule properties to the
petitioner/J.Dr.No.7 within 6 months from the date of the Order, failing
which the respondent/J.Dr.No.7 is granted liberty to get delivery the
same through process of Law. Aggrieved by the said Order, the present
Revision Petition was preferred by the petitioner/decree holder on various
grounds.
4. The learned counsel for the petitioner inter alia strenuously
contended that the Order under Revision is not sustainable, as the Court
below failed to exercise the jurisdiction vested in it in a proper
perspective. He submits that the respondent is guilty of suppression of
facts and on that ground the application filed by him is liable to be
dismissed. In elaboration, he submits that the respondent/J.Dr.No.7 filed
O.S.No.99 of 2017 on the file of the Court of Family-cum-
VIII Additional District Judge at Ongole against the petitioner as well as
his vendors seeking declaration and consequential possession of the
properties and the Court below grievously erred in not considering the
detailed counter filed by the petitioner/decree holder in E.A, wherein
these aspects averred that the property in question was sold to third
parties and filing of the suit by the respondent/J.Dr.No.7 for declaration
and recovery of possession by the respondent were set out. He submits
that the petitioner sold the suit schedule properties through Registered
Sale Deeds dated 06.10.2016 and 30.05.2017 and thereafter the
application to set aside the ex parte decree was allowed on 09.06.2017.
He submits that since the petitioner/decree holder had already sold the
suit schedule property to third parties and is not in possession of the
schedule properties, the impugned Order is not sustainable against the
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petitioner/decree holder. He submits that the Court below grossly erred in
allowing the application without looking into the crucial aspects and went
wrong in allowing the application without considering the matter in a
proper perspective. He submits that the petitioner had approached the
Honourable Court with unclean hands as such the Court below ought to
have rejected the application at the threshold. He further submits that no
party shall suffer by the acts of the Court and as the respondent herein
obtained the impugned Order by playing fraud on the petitioner as well
as on the Honourable Court, the Order in E.A.No.2 of 2018 is not
sustainable in Law. He submits that unless the impugned Order is set
aside, the petitioner/decree holder would suffer serious prejudice and
irreparable loss. Making the said submissions, the learned counsel for the
petitioner seeks to allow the Revision Petition.
5. Per contra, the learned counsel for the respondent/J.Dr.No.7 inter
alia submits that the Order under Revision is well considered and
warrants no interference by this Court. He further submits that in fact the
present Civil Revision Petition is not maintainable and against the Order
passed under Section 144 of CPC, appeal alone lies and as such the
Revision Petition deserves to be dismissed. The learned counsel also
submits that the rights of the parties can be decided under Section
144 of CPC, without even filing a separate suit. He submits that at any
rate filing of a separate suit for recovery of possession is of no
consequence. The learned counsel would further urge that as the ex
parte decree was set aside and the suit was restored, the possession of
the property has to be re-delivered and considering the legal position, the
Court below had ordered for the same and in the facts and
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circumstances, of the case the Court below is justified in allowing the
application filed by the respondent/J.Dr.No.7. In support of his
contentions, the learned counsel places reliance on the decisions reported
in AIR 1965 SC 1477 and AIR 1996 SC 1204. The learned counsel
would further submit that the petitioner/decree holder during the
pendency of application to set aside the ex parte decree sold the subject
matter properties with a mala fide intention and therefore he is not
entitled to any relief from this Court.
6. In reply to the said contentions the learned counsel for the
petitioner submits that the respondent/J.Dr.No.7 has not filed any
rejoinder to the counter of the petitioner/decree holder in E.A.No.2 of
2018 and therefore the averments therein are deemed to have been
admitted. In so far as maintainability of the Revision Petition is
concerned, he submits that the same is not tenable and even otherwise
the Revision Petition is maintainable under Article 227 of the Constitution
of India, as the Order suffers from non-application of mind. Making the
said submissions, the learned counsel for the petitioner seeks to allow the
Revision Petition.
7. Though the learned counsel for the petitioner raised several
contentions, in view of the contentions advanced by the learned counsel
for the respondent with regard to maintainability of the Revision Petition
under Article 227 of the Constitution of India, this Court deems it
appropriate to deal with the said aspect instead of adjudicating the
matter with reference to the various undertaking a detailed examination
of all the contentions raised by the learned counsel for both sides.
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8. As noticed earlier, the Order impugned in the present Revision
Petition was passed in an application filed under Section 144 of CPC,
which reads thus:
Section 144. Application for restitution.-
(1) Where and in so far as a decree 1[or an Order] is 2[varied or reversed in any appeal,
revision or other proceedings or is set aside or modified in any suit instituted for the purpose the
Court which passed the decree or Order] shall, on the application of any party entitled to any
benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as
may be, place the parties in the position which they would have occupied but for such decree
1[or Order] or 3[such part thereof as has been varied, reversed, set aside or modified], and, for
this purpose, the Court may make any Orders, including Orders for the refund of costs and for
the payment of interest, damages, compensation and mesne profits, which are properly
4[consequential on such variation, reversal, setting aside or modification of the decree or
Order.]
5[Explanation.-For the purposes of sub-section (1) the expression "Court which passed the
decree or Order" shall be deemed to include,-
(a) where the decree or Order has been varied or reversed in exercise of appellate
or revisional jurisdiction, the Court of first instance;
(b) where the decree or Order has been set aside by a separate suit, the
Court of first instance which passed such decree or Order;
(c) where the Court of first instance has ceased to exist or has ceased to have
jurisdiction to execute, it, the Court which, if the suit wherein the decree or Order
was passed were instituted at the time of making the application for restitution
under this section, would have jurisdiction to try such suit.]
(2) No suit shall be instituted for the pr-pose of obtaining any restitution or other relief
which could be obtained by application under sub-section (1).
9. Interpreting the above referred Section, a Constitutional Bench of
the Supreme Court in Mahijibhai Mohanbhai Barot vs. Patel
Manibhai Gokalbhai and others1 referred to supra, inter alia
answered the question holding that the application for restitution under
Section 144 of CPC is an application for execution of a decree.
1 AIR 1965 Supreme Court 1477
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10. Section 2 (2) of CPC deals with a „Decree‟ in the following terms:-
(2) "decree" means the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within Section 144, but shall not include
-
(a) any adjudication from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default.
Explanation:- A decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final where such
adjudication completely disposes of the suit. It may be partly preliminary and
partly final.
11. In the light of the specific provision of Law and the legal position,
the impugned Order pursuant to the application filed under Section 144
of CPC would amount to a decree and therefore as rightly contended by
the learned counsel for the respondent, an appeal has to be filed against
the same in terms of Section 96 of CPC, which provides that an appeal
shall lie from every „decree‟ passed by any Court exercising original
jurisdiction to the Court authorized to hear appeals from the decisions of
such Court.
12. In Mohammed Abdul Sattar vs. Mrs.Shahzad Tahera and
another2 a learned Judge of the erstwhile High Court of Judicature of
Andhra Pradesh at Hyderabad had an occasion to consider Section 144 of
CPC and maintainability of Civil Revision Petition under Section 115 of
CPC filed against an Order dismissing the application for restitution.
13. In an elaborate Judgment after referring to a catena of cases,
it was inter alia held that an Order passed in an application filed under
Section 144 of CPC is an appealable Order and Revision against the same
2 2012 (2) ALT 230 (S.B.)
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under Section 115 of CPC does not lie. The learned Judge was also not
inclined to accept the alternative contention that a Revision Petition
under Article 227 of the Constitution of India can be maintained despite
alternative remedy by way of appeal.
14. In the said case, it was urged on behalf of the petitioner/Judgment
Debtor that the application was not laid under Section 144 of CPC
simpliciter and that it was filed under Section 144 of CPC R/w Section 151
of CPC and therefore assuming that an Order under Section 144 of CPC is
appealable, an Order under Section 151 of CPC is not appealable and
consequently a Revision would lie.
15. At Para 26 of the said Judgment, the learned Judge categorically
held that an Order under Section 144 of CPC is a decree in view of the
definition of decree under Section 2, (2) of CPC and that Section 96 of
CPC envisages that an appeal would lie from every decree, with certain
exceptions. While observing that Section 144 of CPC does not fall within
the exceptions under Section 96 of CPC, the learned Judge held that an
Order in an application under Section 144 of CPC is an appealable Order.
16. In the light of the above stated legal position, this Court finds merit
in the submission made by the learned counsel for the respondent that
the present Revision Petition is not maintainable and accordingly the said
contention is upheld. Though the learned counsel for the petitioner had
addressed several contentions inter alia that the Order under Revision is
not sustainable as the respondent suppressed the material facts and
several contentions raised in the counter were not considered, this Court
is not inclined to deal with the same, in view of the conclusion arrived at
supra that the Revision Petition is not maintainable and an appeal lies
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against the Order under Revision. Therefore, this Court deems it
appropriate to leave all the contentions for examination on merits by the
Appellate Court, in the event an appeal is preferred by the petitioner
against the impugned Order.
17. In the aforesaid view of the matter, the Revision Petition is
disposed of, leaving it open to the Revision Petitioner to avail the appeal
remedy as provided under Law and in the event of the petitioner filing
any appeal, the concerned Court shall consider the same on its merits
and in accordance with Law, as this Court had not expressed any opinion
on the merits of the Order impugned in the present Revision Petition.
There shall be no Order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand
closed.
__________________
NINALA JAYASURYA, J
Date: 01.07.2022
IS
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THE HON'BLE SRI JUSTICE NINALA JAYASURYA
Civil Revision Petition No.216 of 2021
Date: 01.07.2022
IS
