Syed Ahmed Ameenuddin, vs Syed Taj Mohammed Quadri Anwar ...
2022 Latest Caselaw 1269 AP

           THE HON'BLE SRI JUSTICE NINALA JAYASURYA

              CIVIL REVISION PETITION No.1493 of 2021

ORDER:

The present Civil Revision Petition is filed under Article 227 of the

Constitution of India assailing the order passed by the learned Principal

District Judge, Kurnool in E.P.No.1366 of 2018 in O.S.No.137 of 2005 dated

07.12.2021.

2. Heard Mr.O.Udaya Kumar, learned counsel for the petitioner/third

party, Mr.G.Suryam, learned counsel for the respondents 1 and 2/D.Hrs and

Mr.C.B.Adarsh Kumar, learned counsel for the 3rd respondent/J.Dr.

3. The petitioner herein who is a third party, filed the present Civil

Revision Petition along with an application seeking leave of this Court to

prefer the revision petition against an order passed in E.P.No.1366 of 2018

in O.S.No.137 of 2005 on the file of the Principal District Judge, Kurnool.

The petitioner claims to be the owner of E.P schedule property. Initially, the

said suit O.S.No.137 of 2005 was filed by the respondents 1 and 2, claiming

to be Muttavallis of Dargah Hazarath Syed Shah Isaq Sanaullah Quadri @

Syed Miyan Sahib Quadri (Roza Dargah) before the Andhra Pradesh Wakf

Tribunal, Hyderabad for recovery of possession of suit schedule property

from the 3rd respondent herein under the provisions of Andhra Pradesh Wakf

Act. The 3rd respondent remained ex parte in the said suit and the suit was

accordingly decreed by the Andhra Pradesh Wakf Tribunal, Hyderabad on

28.02.2006. As the 3rd respondent/J.Dr did not hand over vacant possession

of the suit schedule property in terms of the Decree dated 28.02.2006, after

obtaining the transfer of the said Decree in terms of Section 39 and Order

XXI, Rule 6 of the Civil Procedure Code, the respondents 1 and 2/D.Hrs

initiated execution proceedings before the Court of learned Principal District

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Judge, Kurnool. On registering the Execution Petition, a notice under Order

XXI, Rule 22 of CPC was ordered and the same was served on the

3rd respondent/J.Dr. She entered appearance through her counsel, however

did not choose to file the counter. Subsequently, after issuance of notice in

terms of the Order XXI, Rule 35 of CPC, the 3rd respondent/J.Dr filed a

counter, inter alia, stating that the E.P schedule mentioned property does

not belong to her, that she is not the owner and that the original owner is

one Mr.Syed Ahmed Ameenuddin. It was further stated that the Decree was

passed ex parte, obtained against a wrong person and further that the

property mentioned in the Execution Petition schedule is not correct. Raising

the said pleas, the 3rd respondent/J.Dr sought for dismissal of the Execution

Petition.

4. The learned Principal District Judge, Kurnool on due consideration of

the matter, by an order dated 07.12.2021 while rejecting the objections

raised by the 3rd respondent/J.Dr, directed issuance of warrant for delivery

of E.P schedule property. Aggrieved by the same, the present Civil Revision

Petition is filed.

5. Mr.O.Udaya Kumar, learned counsel for the petitioner raised three

principal grounds that though the petitioner is proper and necessary party

being the owner of the suit schedule property, he was not made party to the

suit and as such the decree itself is null and void. It is also his submission

that though it was brought to the notice of the Executing Court that the

petitioner herein is the owner of the suit schedule property and he is in

possession and enjoyment of the same, the learned Judge without

considering the said aspect in a proper perspective directed delivery of suit

schedule property erroneously and therefore the order under revision is

liable to be set aside.

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6. The learned counsel further submits that in fact the E.P itself is not

maintainable as the same is filed beyond limitation and the learned

executing Court ought to have adjudicated as to whether the E.P is barred

by limitation. Making the said submissions the learned counsel seeks to set

aside the order under revision.

7. On the other hand, the learned counsel for the respondents

1 and 2/D.Hrs submits that the present Civil Revision Petition is filed only

with a view to protract the litigation and deprive the decree holders from

enjoying the fruits of the decree. He submits that though the

3rd respondent/J.Dr suffered an ex parte decree, she has not taken any

steps seeking to set aside the same all these years. He submits that the

petitioner is none other than the husband of the 3rd respondent/J.Dr. He

contends that no scrap of paper is filed before the Executing Court by the 3rd

respondent/J.Dr to support the plea taken by her that the petitioner is the

owner of the suit schedule property. Further, no petition is filed by the

petitioner claiming to be the owner of the property at any appropriate time,

even after issuance of summons to the 3rd respondent/J.Dr in the E.P

proceedings. He submits that there are no bonafides on the part of the

petitioner or the 3rd respondent and the Civil Revision Petition is liable to be

dismissed.

8. The learned counsel for the 3rd respondent/J.Dr Mr.Adarsh Kumar

supported the contentions advanced by the learned counsel for the

petitioner to the effect that he is the owner of suit schedule property and

the Decree as obtained as also the consequential E.P Proceedings without

impleading him is not sustainable. The learned counsel drawing the

attention of this Court to the judgment and decree passed in O.S.No.135 of

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2005 submits that the said suit claiming eviction of the defendants therein

on the premise that the suit schedule property belongs to Wakf Board was

dismissed and in view of the same, the ex parte decree obtained against the

3rd respondent/J.Dr is not sustainable.

9. This Court has considered the submissions made by the learned

counsel for the respective parties and perused the material on record. On

examination of the contentions, the point that falls for consideration of this

Court is whether the order passed by the learned Principal District Judge,

Kurnool is liable to be interfered with, in the light of the contentions

advanced on behalf of the petitioner?

10. Point:-

With reference to the contentions advanced on behalf of the

petitioner that the respondents 1 and 2/D.Hrs obtained a decree against a

wrong person and further that in the Execution proceedings the petitioner

was not impleaded though he is the owner of the property in question, in

the considered view of this Court, the same merits no consideration. As is

evident from the record, despite suffering an ex parte decree, no steps were

taken by the 3rd respondent, who is stated to be the wife of the petitioner.

Further, even at the stage of execution proceedings no material is placed to

substantiate the plea that the 3rd respondent is not the owner of the suit

schedule property, but it is the petitioner. In the absence of any material

and claim by any third party/petitioner, the reasons assigned by the learned

Principal District Judge in overruling the objections raised by the

3rd respondent, cannot be said to be erroneous or unsustainable. As rightly

pointed out by the learned Principal District Judge, any third party having

interest over the property in question is entitled to pursue remedies, as

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available in Law. Therefore, this Court finds no reasons, much-less valid

reasons to interfere with the well considered order of the learned Principal

District Judge, in rejecting the objections raised by the 3rd respondent/J.Dr.

Accordingly the submissions made by the learned counsel for the petitioner

are rejected.

11. In so far as the contention with regard to limitation is concerned, it is

the submission of the learned counsel for the petitioner that the suit was

decreed on 28.02.2006, whereas the execution proceedings were initiated in

the month of April, 2018 and therefore the same are barred. It is his

submission that the learned Principal District Judge committed an error in

not examining the said aspect and the order suffers from material

irregularity. This Court is not inclined to examine the said contentions raised

by the petitioner as he is neither a party to the suit nor to the Execution

Proceedings. In fact, such a plea was not raised by the 3rd respondent/J.Dr

in the Execution Proceedings. This Court is of the considered opinion that it

is not open to the petitioner to raise the aspect of limitation or claim interest

over the E.P schedule property in the present proceedings under Article 227

of the Constitution of India, instead of availing other remedies available,

wherein all the relevant aspects in accordance with Law can be adjudicated.

This Court is in respectful agreement with the opinion of the learned

Principal District Judge that anybody holds interest over the property is

entitled under Law to pursue remedies as available to them. Viewed from

any angle, this Court finds no reason to interfere with the well considered

order under Revision, in exercise of powers under Article 227 of the

Constitution of India.

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12. Accordingly, the Civil Revision Petition is dismissed. No order

as to costs.

As a sequel, miscellaneous applications, if any, pending shall stand

dismissed.

__________________ NINALA JAYASURYA, J Date: 11.03.2022

IS

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THE HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.1493 of 2021 Date: 11.03.2022

IS