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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
CIVIL REVISION PETITION No.1338 OF 2015
ORDER:
This Civil Revision petition is filed by the petitioner under section
115 of Civil Procedure code (in short CPC) orders passed in EA No.109
of 2014 in E.A.No.42 of 2003 in E.P.41 of 1995 in O.S.No.73 of 1983
on the file of learned Senior Civil Judge, Parchur, Prakasam District
wherein and whereby the executing Court dismissed petition filed by
the Revision petitioner under order XXII rule 9 r/w 151 CPC though
there was no contest either on behalf of D.Hr or J.Dr who are
respondents herein.
2. The Revision petitioner who is 3rd party to the proceedings filed
petition before executing Court permit him to come on record, on the
ground that auction purchaser who purchased execution petition
schedule property sold petition schedule property to him and executed
registered sale deed dated 29-01-2004. He submits that auction
purchaser also executed the General Power of Attorney in his favour
and authorized him to represent in the execution proceedings and he
filed EA.05 of 2006 to permit him to represent the auction purchaser
which was allowed, and his vendor also filed petition for delivery of
E.P. schedule property wherein Court ordered delivery of the property 2
and in the meanwhile auction purchaser died. It is the contention of
Revision petitioner that in view of death of his attorney as he
purchased Execution petition schedule property under registered sale
deed 29.1.2004 and as legal heirs of auction purchaser are not
evincing any interest to implead themselves in the proceedings, he
prays to permit him to come on record.
3. Though either the Decree holder or Judgment debtor not filed
any counter before Executing court and they remained ex parte, court
below dismissed petition filed by the petitioner on the ground that
without adding legal heirs of deceased auction purchaser as
respondents, the petition is not maintainable.
4. Aggrieved by the orders passed by the executing Court, the
present Revision petition is filed by the petitioner on the ground that as
he purchased execution petition schedule property from auction
purchaser under Registered Sale deed dated 29.01.2014 by paying
valuable sale consideration due to that he is necessary party to be
impleaded in a petition filed by auction purchaser seeking delivery of
execution petition schedule property. He prays to allow the petition.
5. I have heard learned counsel for Revision petitioner. 3
6. The learned counsel Mr.Challa Siva Sankar, represented on
behalf of Mr.C.M.R Velu, learned counsel for R2/J.Dr. Learned counsel
for Revision petitioner mainly contended that as Revision petitioner
purchased execution petition schedule property due to that he is
necessary party to be impleaded in the execution proceedings and also
in the petition filed by the auction purchaser in view of order XXII Rule
9 CPC. He prays to allow the petition.
7. Now the issue that emerges for consideration of this Court is:-
"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?"
POINT:-
8. Before going to the merits of the case, it would be beneficial to
quote Section 2(11) of CPC, which reads as under:-
Legal Representative:-
Legal representative is a person in law who represents the estate of the deceased and includes any person who intermeddles with the estate of deceased and where a party sues or sued in representative character, the person on whom the estate devolves on the death of the party so suing or sued. S. 2(11) of CPC.
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9. On perusal of the above definition of legal representatives which
also includes any person who intermeddles with the estate of deceased
also legal representative. There is no dispute with regard to purchase
of execution petition schedule property by the petitioner herein from
auction purchaser under registered sale deed dated 29.01.2004.
Before executing Court respondents herein who are D.Hr and J.Dr not
chosen to contest and remained ex parte. Though revision petitioner
has filed petition to implead legal representatives of deceased R1/D.Hr,
who are not necessary to be added in the present revision petition as
execution petition schedule property is already sold in the Court
auction purchased by vendor of petitioner herein and sale is also
confirmed and sale certificate also issued on 11.03.1997.
10. This Court in C.Obi Reddy....Appellant Vs K.Sanjeeva
Reddy....Respondent 2019(2) ALD 484 held that
"Legal representative as defined in Section 2(11) CPC means any person who represents the estate of the deceased and includes a person who intermeddles with the estate of the deceased".
11. In the present case, petitioner herein is said to be purchaser of
execution petition schedule property from auction purchaser who
admittedly died after filing of petition seeking for delivery as sale in his 5
favour also confirmed and sale certificate issued. The petitioner herein
stepped into the shoes of the auction purchaser thereby he is legal
representative as he is intermeddles with the estate of deceased which
is execution petition schedule property. The executing Court
erroneously dismissed the petition filed by the petitioner on the ground
that legal heirs of auction purchaser to be added as respondents which
is not necessary as property has been already said to be sold by the
auction purchaser to the revision petitioner herein. Therefore, orders
passed by executing Court are not sustainable either in law or on facts
which needs interference of this court under section 115 of CPC.
12. In the result, the Civil Revision petition is allowed. The petition
filed by the petitioner in E.A.No.109 of 2014 in E.A.No.42 of 2003 in
E.P.No.41 of 1995 in O.S.No.73 of 1983 is hereby allowed and the
petitioner is permitted to come on record as 2nd petitioner in the
petition filed by the auction purchaser before the executing Court. No
order as to costs
Consequently, miscellaneous petitions pending if any, shall stand
closed.
__________________________ JUSTICE BANDARU SYAMSUNDER Date :10.10.2022 Chb,Grl.
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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
C.R.P.No.1338 of 2015
Date : 10.10.2022
Chb,Grl.
