Dadi Sri Rama Krishna vs Sathavahana Cooperative House ...
2022 Latest Caselaw 1345 AP

           HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                        C.R.P.No.1080 of 2021

ORDER:

The petitioners in the present revision petition are the claimants in

E.A.No.8 of 2021 in E.P.No.128 of 2019 in O.S.No.1136 of 2005 in the

Court of the Principal Senior Civil Judge, Gajuwaka, Visakhapatnam.

2. The case of the petitioners is that the petitioners had

purchased an extent of Ac.12.33 cents of land in Sy.Nos.325/1, 325/2 and

325/3 sitauated at Sathivarnipalem, hamlet of Narava, Pendurthy Mandal,

Visakhapatnam District, in the year 1995. In the year 2002, when certain

persons made an attempt to encroach this land, the 1st petitioner filed

O.S.No.343 of 2002 before the IV Additional Senior Civil Judge,

Visakhapatnam for permanent injunction against these persons. This suit

was decreed on 13.03.2006. One of the defendants in O.S.No.343 of

2002, while it was pending, had filed O.S.No.101 of 2004 before the IV

Additional Senior Civil Judge, Visakhapatnam for permanent injunction

against petitioners 2 to 4 and two other persons, which was dismissed on

15.02.2010. In May 2012, the decree holder, who is the 1st respondent in

the present revision petition, had published a notice in the newspaper. A

reply notice was also published by the petitioners that they are the

absolute owners of the aforesaid Ac.12.33 cents of land. At that stage, the

petitioners are said to have come to know of the suit filed by the 1st

respondent on one hand and respondents 2 to 8 on the other hand by

way of O.S.No.1136 of 2005 for specific performance of two agreements

of sale based on a Khararnama said to have been executed by the

vendors of the petitioners herein in the year 1986 and 1989. This suit had 2 RRR,J C.R.P.No.1080 of 2021

been allowed on 24.11.2006. The Execution petition had also been filed

by the 1st respondent against the petitioners.

3. Having come to know of these facts, the petitioners filed an

application under Section 47 of C.P.C., vide E.A.No.102 of 2014 in

E.P.No.34 of 2007. This application was dismissed on 01.08.2018.

Aggrieved by the said order of dismissal, the petitioners moved

C.R.P.No.6858 of 2018 before the High Court of Judicature at Hyderabad

for the Sate of Telangana and the State of Andhra Pradesh. In the course

of hearing of this revision petition, the petitioners withdrew the said

revision petition, with leave of the High Court to move a new application

under Order XXI Rule 97 and 99 C.P.C. The Hon'ble High Court, on

18.08.2019 permitted withdrawal of the revision petition with leave.

4. The petitioners had also sought to file a suit vide

G.R.No.194/21.01.2019 before the Principal Senior Civil Jude,

Visakhapatnam, for cancellation of the judgment and decree dated

24.11.2006. This suit was rejected under the provisions of Order VII Rule

11 C.P.C., by the Principal Senior Civil Judge, Visakhapatnam, on

12.07.2019. Aggrieved by the said order of rejection, the petitioners

moved C.R.P.No.2782 of 2019 before this Court and the same was

dismissed on 28.09.2019 granting liberty to the petitioners to move an

appropriate legal remedy that may be available to them under law.

Thereafter, the petitioners filed an appeal before this Court along with a

petition to condone the delay vide C.M.P.No.695 of 2019. The said C.M.P.

was dismissed by this Court. The appeal, which has been numbered as

A.S.No.312 of 2020, is pending before this Court.

5. At that stage, the petitioners moved E.A.No.8 of 2021 under

Order XXI Rule 97 and 99 before the Executing Court. By this time, 3 RRR,J C.R.P.No.1080 of 2021

E.P.No.34 of 2007 had been renumbered as E.P.No.128 of 2019. The

respondents herein, after receiving notice in E.A.No.8 of 2021, had filed

E.A.No.42 of 2021 in E.A.No.8 of 2021 in E.P.No.128 of 2019 O.S.No.1136

of 2005 for rejection of E.A.No.8 of 2021 on the ground of res judicata.

6. This application, moved by the respondents, was allowed on

26.08.2021 and E.A.No.8 of 2021 was dismissed as barred by res judicata.

Aggrieved by the said order, the petitioners have moved this Court by way

of the present revision petition.

7. Heard Sri V.S.R. Anjaneyulu, learned Senior Counsel

representing Smt. G. Poorna Sri learned counsel for the petitioners and Sri

V.V. Satish, learned counsel appearing for the 1st respondent.

8. Sri V.S.R. Anjaneyulu, learned Senior Counsel representing

Smt. G. Poorna Sri, learned counsel for the petitioners, submits that the

issue of res judicata would not arise in the present case. He submits that

E.A.No.102 of 2014 had earlier been filed by the petitioners under Section

47 of C.P.C., raising an issue of executability of the decree. The issues

raised in E.A.No.8 of 2021 are on the issue of right and title of the

petitioners over the petition schedule property. The scope of an

application under Order XXI Rules 97 and 99, under which E.A.No.8 of

2021 has been filed, is much larger and would include issues which are

beyond the scope of application under Section 47 C.P.C. He would submit

that in the circumstances, there would be no issue of res judicata and the

rejection of E.A.No.8 of 2021, on that ground, would not arise.

9. Sri V.V. Satish, learned counsel appearing for the 1st

respondent-decree holder would submit that the issues and facts raised in

both the applications are one and the same. In such circumstances, the

finding of the Executing Court, that E.A.No.8 of 2021 is barred by res 4 RRR,J C.R.P.No.1080 of 2021

judicata, cannot be faulted. He relied on the judgment of the erstwhile

High Court of Andhra Pradesh in R.V.S. Vara Prasad and others vs.

Dr. V. Ramdas (Died) per L.Rs.1 for the proposition that findings on an

issue in an earlier proceeding would bar any subsequent proceeding.

Consideration of the Court:

10. In E.A.No.102 of 2014, the petitioners contend that they had

obtained title over the petition schedule land, from the judgment debtors

in O.S.No.1136 of 2005 and that the said judgment debtors had alienated

the petition schedule property to the petitioners even before the alleged

agreements between the decree holder and the judgment debtor are said

to have been executed. On this basis, the petitioners had sought a

declaration that the judgment and decree in O.S.No.1136 of 2005 dated

24.11.2006 is un-executable. This issue was rejected by the Executing

Court, which held that the claim of the petitioners that they were prior

purchasers of the petition schedule land cannot be accepted. Aggrieved by

this order, the petitioners filed C.R.P.No.6858 of 2018. This C.R.P. was

withdrawn with leave to file an application under Order XXI Rules 97 and

99 of C.P.C. This Court while permitting such a withdrawal had observed

that the leave granted to the petitioners shall subject to any legal and

tenable objections that may be raised by the decree holder or the J.Drs.

11. The petitioners had initially sought to file a suit for

cancellation of the judgment and decree dated 24.11.2006 which came to

be dismissed under the provisions of Order XI Rule 11 C.P.C. Against the

said order of dismissal dated 12.07.2019, the petitioners initially moved

C.R.P.No.2782 of 2019, which dismissed by this Court on 28.09.2019 on

(2014) 1 ALD 188 (DB) 5 RRR,J C.R.P.No.1080 of 2021

the ground that C.R.P. is not maintainable and giving liberty to the

petitioners to avail appropriate legal remedies. It appears that the

petitioners have, thereafter, filed A.S.No.312 of 2020, which is pending

before this Court.

12. After filing A.S.No.312 of 2020, the petitioners moved

E.A.No.8 of 2020 under Order XXI Rules 97 and 99 C.P.C., before the

Executing Court. In this application also the case of the petitioners is that

they are prior purchasers of the petition schedule property and as such

their claim to the property should be accepted and the decree holder

cannot be allowed to continue with the execution proceedings. It is clear

that in both E.A.No.102 of 2014 and E.A.No.8 of 2021, the petitioners are

claiming to be prior purchasers, and their claim cannot be disturbed by

the judgment and decree obtained by the decree holder.

13. The Executing Court, after noticing these facts, had held

that E.A.No.8 of 2021 is hit by the principle of res judicata.

14. The erstwhile High Court of Andhra Pradesh in R.V.S. Vara

Prasad and others vs. Dr. V. Ramdas (Died) per L.Rs., had held that

the principle of res judicata would apply in respect of findings and not

with reference to the entire proceedings of the decree as such. The

Division Bench had held that once an issue relating to any fact, is

determined in any earlier proceeding, the same issue cannot be raised in

any subsequent proceeding.

15. In view of the above facts and in view of the above

judgment of the Division Bench of the erstwhile High Court of Andhra

Pradesh, it is clear that E.A.No.8 of 2021 would be hit by the principle of

res judicata as the issues raised in both the proceedings are one and the

same and it cannot be said that the principle of res judicata will not apply 6 RRR,J C.R.P.No.1080 of 2021

because the proceedings had been initiated under different provisions of

law.

16. In the circumstances, I do not find any reasons to interfere

with the order of the Executing Court in E.A.No.42 of 2021 in E.A.No.8 of

2021 in E.P.No.128 of 2019 in O.S.No.1136 of 2005 in the Court of

Principal Senior Civil Judge, Gajuwaka, Visakhapatnam.

17. Accordingly, the civil revision petition is dismissed. There

shall be no order as to costs. As a sequel, pending miscellaneous

petitions, if any, shall stand closed.

_________________________ R. RAGHUNANDAN RAO, J.

16th March, 2022 Js.

                          7                             RRR,J
                                       C.R.P.No.1080 of 2021




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




               C.R.P.No.1080 of 2021




                  16th March, 2021
Js.