Maddula Venkateswarlu, vs Kona Apparao,
2022 Latest Caselaw 2414 AP

     HONOURABLE SRI JUSTICE NINALA JAYASURYA

         CIVIL REVISION PETITION No.477 of 2021

ORDER:-

        The present Revision Petition is filed aggrieved by the

Orders dated 15.03.2021 passed in E.A.No.139 of 2011 in

E.P.No.193 of 2009 in O.S.No.160 of 2002 on the file of the

Court of Principal Junior Civil Judge, Bapatla.


2.      Heard Mr. N.Sriram Murthy, learned counsel for the

petitioner and Mr. O.Manohar Reddy, learned counsel appearing

for Mr. V.Satya Prasad, Advocate, for the 2nd respondent. None

appeared on behalf of the 1st respondent.

3. The relevant facts for disposal of the present Civil

Revision Petition may briefly be stated as follows:

The petitioner herein is the defendant in the above

referred suit. The 1st respondent herein filed the said suit

seeking a Decree for Permanent Injunction, restraining the

defendant and his men from interfering with his possession and

enjoyment of Plaint Schedule Property and for mandatory

injunction, directing the defendant to remove the constructions

made thereon and in default to get the same removed through

process of Court. The 2nd respondent herein was added as 2nd

plaintiff as per the Orders dated 22.03.2004 in I.A.No.122 of

2004. The said suit was decreed by Judgment dated

08.10.2004, against which, the petitioner/defendant/Judgment

Debtor(for short 'J.Dr') preferred A.S.No.64 of 2004 on the file

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of the Court of the Senior Civil Judge, Bapatla, and the same

was dismissed on 07.04.2009. The petitioner carried the matter

by way of further Appeal vide S.A.No.1364 of 2011 and the

same was dismissed for default by an Order dated 27.12.2013.

Seeking execution of the Decree, the 2nd respondent/Decree

Holder (for short 'D.Hr.') herein filed the E.P.No.193 of 2009

and the same was allowed by an Order dated 17.06.2010. The

Executing Court directed the Court Amin to remove the

constructions after giving 15 days time to the petitioner/J.Dr.

The Court Amin on 19.07.2010 informed the petitioner/J.Dr.,

that the warrant as per the Orders of the Court would be

executed. However, the petitioner/J.Dr., prevented the Court

Amin from executing the warrant. Under the said

circumstances, the 2nd respondent herein filed E.A.No.139 of

2011 seeking to prosecute the petitioner/J.Dr., for his willful,

deliberate disobedience towards the Court Order and

preventing the Court Amin and D.Hr., from executing the

warrant and to punish him in accordance with Law. The

petitioner/J.Dr., filed counter and resisted the said application.

In the said proceedings, the 2nd respondent herein was

examined as P.W.1, the mediator was examined as P.W.2, the

Court Amin as P.W.3 and Exs.P1 to P4 were marked. The

petitioner/J.Dr., was examined as R.W.1 and got marked Ex.R1.

The learned Executing Court, after considering the evidence,

both oral and documentary, by an Order dated 15.03.2021,

allowed the above said application by committing the

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petitioner/J.Dr., to Civil Prison for a period of one month for

disobedience of the Court Order. Hence, the present Revision

Petition.

4. The main contention of the learned counsel for the

petitioner/J.Dr., is that after filing the suit, the 1st

respondent/1st plaintiff alienated the Suit Schedule Property by

a Registered Sale Deed dated 26.07.2002, which came to the

knowledge of the petitioner only before filing the present

Revision Petition and in view of said transaction, the 1st

respondent had no subsisting interest in the suit property. He

submits that the D.Hrs., suppressed the said material fact and

obtained a Decree by playing fraud on the Court. It is his

submission that as the D.Hrs., have no title over the property in

question after execution of the Sale Deed and as they played

fraud, the Decree itself is a nullity and in-executable. In support

of his contention that the Decree and Judgment obtained by

fraud is as nullity, the learned counsel had placed reliance on

the decisions of the Hon'ble Supreme Court in A.V.Papayya

Sastry and others v. Government of Andhra Pradesh and

Others1, S.P.Chengalvaraya Naidu v. Jagannath2 and

Judgment in Civil Appeal No.11491 of 2016 dated 02.01.2017

etc. It is the further contention of the learned counsel that the

1st respondent did not file the E.P.Proceedings and the 2nd

respondent alone had initiated the same. While referring to

1 (2007) 4 SCC 221 2 (1944) 1 SCC 1

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Rule 32 of Civil Rules of Practice, the learned counsel would

further submit that along with the E.P., the 2nd respondent did

not file the alleged General Power of Attorney, much less an

affidavit of the D.Hr.No.1. He submits that the 2nd respondent

was authorized only to conduct the suit on behalf of the 1st

respondent and nothing beyond that. As the filing of E.P., is an

Act which is not authorized by the 1st respondent/D.Hr., the

learned counsel submits that the very Execution Proceedings

and the consequential Order thereon are vitiated. The learned

counsel places reliance on a decision reported in Narmada

Prasad v. Bedilal Burman3 and further submits that the

power of attorney cannot depose in place of the principal/1st

respondent/D.Hr. Referring to the Execution Petition, he also

submits that the same was filed by the 2nd respondent alone

and it does not bear the signature of 1st respondent/D.Hr. He

submits that non-appearance of the 1st respondent in the

present proceedings despite service of notice would go to show

that the obstruction allegedly caused to the D.Hr/1st respondent

is not correct. While submitting that for executing the warrant,

it is the practice to seek the assistance of Village Revenue

Officer/Sarpanch of the Village, he further contends that in the

present case, no such procedure was adopted and on the other

hand, the panchanama with regard to alleged obstruction was

conducted in the presence of some 3rd parties who are not even

the neighbours. He further submits that if at all there is

3 AIR 2019 MP 234

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obstruction to the execution of warrant, the same would have

been reported to the police, which was not done in the present

case. Contending that the 1st respondent/D.Hr., was not at all

present at the time of alleged execution of the warrant and the

record is concocted, he submits that the Executing Court

committed an error in opining that D.Hr., clearly established his

case against the J.Dr., without any valid basis and the Order

under challenge is therefore liable to be interfered with. He

also submits that Section 74 of Code of Civil Procedure (for

short 'C.P.C.') is not applicable as the suit is not for possession

of the property and as such E.P.Proceedings invoking the said

provision is not maintainable. Making the said submissions, the

learned counsel would submit that the Order under Revision is

liable to be set aside, as the same suffers from material

irregularities.

5. On the other hand, the learned counsel for the

respondents submits that the 2nd respondent was impleaded as

party-plaintiff No.2 and the same was not objected to by the

petitioner/J.Dr., and a Decree was passed in favour of the

respondents herein on 08.10.2004. He submits that the said

Judgment and Decree was confirmed and attained finality on

dismissal of the Second Appeal filed by the petitioner/J.Dr. He

further submits that though, as per the Decree three months

time was granted to the petitioner/J.Dr., to hand over the Suit

Schedule Property after removing the structures/constructions

raised by him, the petitioner/J.Dr., had not complied with the

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Judgment and Decree and on the other hand, obstructed the

Court Amin when the warrant was sought to be executed,

pursuant to the Orders dated 17.06.2010 passed in E.P.No.193

of 2009, which was not challenged. He submits that in fact the

J.Dr., along with a mob came, prevented the execution of

warrant and the allegations made in the affidavit filed in

support of the E.A., in this regard were not contradicted. He

submits that the petitioner/J.Dr., having lost the matter and

suffered an Order of execution of the Decree, filed the Revision

Petition by raising several pleas, for the first time and the same

is not permissible. With regard to the contention that the 2nd

respondent was authorized to conduct suit proceedings only but

not E.P., proceedings, he submits that the same was in fact

negatived by the Executing Court on the earlier occasion in

E.P.No.193 of 2009 and therefore, the said contention is liable

to be rejected.

6. The learned counsel would also contend that the

submission with reference to Section 74 of C.P.C., is

misconceived and further that as the execution of Decree in

respect of immovable property is resisted, the application is

maintainable. The learned counsel submits that the Executing

Court, recorded its findings with regard to the obstruction to

the execution of the Decree, on appreciation of evidence and in

such circumstances, no interference is warranted. The learned

counsel would also contend that the Revision Petition under

Article 227 is not maintainable and that even otherwise, the

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Court will not re-appreciate the evidence in exercise of powers

under Article 227 of the Constitution of India. Making the said

submissions, the learned counsel seeks dismissal of the

Revision Petition.

7. In reply, the learned counsel for the petitioner submits

that as E.P., is pending, the present Civil Revision Petition

under Article 227 of the Constitution of India is maintainable.

He submits that the plea regarding the suppression of

execution of Sale Deed is not refuted and the same can be

questioned in any collateral proceedings.

8. This Court has given a thoughtful consideration to the

contentions advanced by the learned counsel for both sides,

gone through the material on record and the following points

fall for consideration:

1. Whether the Order under Revision is liable to be set aside on the ground that the decree is a nullity?

2. Whether the E.P.Proceedings as initiated by the 2nd respondent is not maintainable and Order under challenge is liable to be set aside for the said reason?

3. Whether the present Proceedings under Article 227 of the Constitution of India are maintainable? If so, whether the Order under Revision warrants interference by this Court?

Point No.1:

9. As regards the main contention of the learned counsel for

the petitioner to the effect that the Decree itself is a nullity as it

is allegedly obtained by playing fraud, and the consequential

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proceedings are vitiated, the said plea was raised for the first

time in the present proceedings. Though, there is no dispute

with regard to the ratio laid down by the Hon'ble Supreme

Court in the decisions relied on by the learned counsel for the

petitioner, unless, the decree is declared as nullity by a

Competent Court, it remains executable. The scope of present

proceedings is limited to the extent of examining as to whether

the Order under Revision suffers from any jurisdictional error or

perversity. This Court cannot go into the aspect as to the

validity of the Decree and examine the same. Accordingly, the

contention raised in this regard is rejected.

Point No.2:

10. Insofar as the second contention with regard to the E.P.

Proceedings initiated by the 2nd respondent to the effect that he

is only authorized to conduct the suit on behalf of the 1st

respondent, but not the E.P. Proceedings, the same deserves

no consideration. Firstly, the 2nd respondent was arrayed as

party to the suit as 2nd plaintiff, pursuant to the Orders dated

22.03.2004 and the same was not objected to. By virtue of the

Judgment dated 08.10.2004, a Decree was also passed in

favour of the 2nd respondent herein along with the 1st

respondent. The said Judgment and Decree was confirmed in

the appeal A.S.No.64 of 2004 and the subsequent Second

Appeal, challenging the said order also ended in dismissal. In

such circumstances, it is not open to the petitioner/J.Dr., to

raise any issue with regard to competency of the 2nd

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respondent to maintain the present application. Further, as

contended by the learned counsel for the 2nd respondent, the

attempt made by the petitioner/J.Dr. in the E.P.Proceedings

i.e., E.P.No.193 of 2009, that the G.P.A., executed in favour of

the 2nd respondent was applicable to the suit proceedings only,

but not for E.P.Proceedings, was rejected and the same was

not challenged by the petitioner/J.Dr. The decision referred 3rd

supra, is of no assistance to the petitioner against the back

drop of the factual position of the present case. Therefore,

submissions made by the counsel for the petitioner in this

regard are rejected.

11. One of the contentions advanced on behalf of the

petitioner is that the application as is filed under Section 74 of

the C.P.C., is not maintainable as the Decree is not for

possession of the immovable property. This Court is not inclined

to accept the same as resistance by the petitioner/J.Dr., is to

the execution of the decree in respect of immovable property.

Accordingly, Point No.2 is answered against the petitioner.

Point No.3:

12. With regard to maintainability of the present Civil

Revision Petition is concerned, as the Execution Proceedings

have attained finality, this Court is of the view that the present

Revision Petition is not maintainable. Be that as it may.

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13. In the present case, the Executing Court had considered

the matter by appreciating the evidence of P.W.3-Court Amin

and recorded categorical findings with reference to his report

that the petitioner/J.Dr., resisted the execution of warrant. The

obstruction caused by the petitioner/J.Dr., is not in dispute.

14. In the cross examination, he admitted that he prevented

the Court Amin, but stated that he obstructed as measurements

are not tallying. If that be so, steps should have been taken on

receipt of notice from the Court Amin. No such attempt was

made. No such plea was taken in the Counter, either. In the

absence of the same, the acts of the petitioner in causing

obstruction to the implementation of the Court Order cannot be

countenanced. As mentioned earlier, the petitioner/J.Dr., lost

the matter in three courts and matter had attained finality. His

objections in the E.P., were rejected. He had no right or

authority to remain in the suit land. It is incumbent on him to

honour the decree and remove the constructions made by him.

However, he failed do so and on the other hand prevented the

Court Amin as established by oral and documentary evidence

on record. The only aim and intention of the petitioner/J.Dr.,

appears to be to defeat the decree, one way or the other. He

had obstructed the Court Amin from executing the Warrant and

thereby came in the way of implementation of the Court Order.

As mentioned earlier, in cross examination he had tacitly

admitted the same, which is sufficient to hold him guilty of

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disobedience of the Order of the Court. The learned Executing

Court having been satisfied that the petitioner/J.Dr., failed to

remove the constructions from the E.P.Schedule Property,

though sufficient time to demolish the construction was

granted, recorded a categorical finding that the J.Dr., caused

obstructions for removal of the constructions. In view of the

said finding, based on material on record, this Court cannot

interfere with the same by re-appreciating the evidence which

is not permissible, in a proceeding under Article 227 of the

Constitution of India. Further, there is no perversity in the

order under Revision as the Executing Court have gone through

the entire material available on record and arrived at the

conclusions by recording cogent reasons. As rightly contended

by the learned counsel for the respondents, the scope of

interference in proceedings under Article 227 of the

Constitution of India is limited and this Court finds no

jurisdictional error in the Order under Revision.

15. Accordingly, the Civil Revision Petition is dismissed. No

order as to costs.

Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.

____________________ NINALA JAYASURYA, J 06.05.2022 BLV

NJS,J CRP No.477 of 2021

HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.477 of 2021 Dated 06.05.2022

BLV