Vasamsetti Vijaya Kumar, vs Bandi Prasanthi,
2023 Latest Caselaw 480 AP

    HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION Nos.456, 598 and 585 of 2022


CIVIL REVISION PETITION No.456 of 2022

Between:

Vasamsetti Vijaya Kumar, S/o Venkata Rao,
aged       35       years,     D.No.85-6-32,
Veeresalingampuram,      Rajamahendravaram,
East Godavari District.
                                               ... Petitioner.
           Versus

Vasamsetti Ramanamma, W/o Venkata Rao,
aged       59       years,      D.No.85-6-32,
Veeresalingampuram,      Rajamahendravaram,
East Godavari District and two others.
                                           ... Respondents.

CIVIL REVISION PETITION No.598 of 2022

Between:

Vasamsetti Vijaya Kumar, S/o Venkata Rao, aged 35 years, D.No.85-6-32, Veeresalingampuram, Rajamahendravaram, East Godavari District.

... Petitioner.

Versus

Bandi Prasanthi, W/o Jagadeesh, aged 39 years, r/o D.No.2-266-2, Municoodali, Rajamahendravaram, East Godavari District and three others.

... Respondents.

SRSJ, CRPs 458, 598, 585 of 2022

CIVIL REVISION PETITION No.585 of 2022

Between:

Vasamsetti Ramanamma, W/o Venkata Rao, aged 60 years, D.No.85-6-32, Veeresalingampuram, Rajamahendravaram and another.

... Petitioners.

Versus

The Innispeta Cooperative Urban Bank Limited No.3015, Rajamahendravaram and another.

... Respondents.

Counsel for claim petitioner : Sri K.Chidambaram, learned senior counsel representing Sri G.Yaswanth, learned counsel

Counsel for auction purchaser : Sri V.V.N.Narayana Rao Counsel for Decree Holder : Sri Basava Srinivas Counsel for Judgment debtors : Sri Narasimha Rao Gudiseva

COMMON ORDER

Claim petitioner filed C.R.P.No.456 of 2022 against the

order dated 15.02.2022 in E.A.No.83 of 2020 in E.A.No.1622

of 2022 in E.P.No.173 of 2017 on the file of Principal District

Judge, East Godavari, Rajamahendravaram.

SRSJ, CRPs 458, 598, 585 of 2022

2. Claim petitioner filed C.R.P.No.598 of 2022 against the

order dated 10.03.2022 in E.P.No.173 of 2017 in C.E.P.No.43

of 2015-2016 on the file of Principal District Judge, East

Godavari, Rajamahendravaram.

3. Judgment Debtors filed C.R.P.No.585 of 2022 against the

order dated 10.03.2022 in E.P.No.173 of 2017 in C.E.P.No.43

of 2015-2016 on the file of Principal District Judge, East

Godavari, Rajamahendravaram.

4. Vasamsetti Vijaya Kumar is hereinafter referred to as

„Claim Petitioner‟; Vasamsetti Ramanamma and Vasamsetti

Venkata Rao are hereinafter referred to as „Judgment Debtors

1 and 2‟ (J.Drs); The Innispeta Cooperative Urban Bank

Limited, Rajamahendravaram is hereinafter referred to as

„Decree Holder‟ (D.Hr) and Bandi Prasanthi is hereinafter

referred to as „Auction Purchaser‟.

5. (a) J.Drs secured a loan of Rs.50,000/- from the D.Hr

in the name of second J.Dr. Mortgage deed was executed in

respect of 94 square yards bearing Door No.85-6-32 in

V.L.Puram, Rajamahendravaram. The document stood in the

SRSJ, CRPs 458, 598, 585 of 2022

name of V.Ramanamma, wife of V.Venkata Rao. J.Drs

entered into an agreement with D.Hr on 17.12.1996. J.Drs

also borrowed Rs.2,00,000/- was granted by D.Hr on

27.07.1999. J.Drs further borrowed Rs.5,00,000/- on

18.01.2001 from the D.Hr. Necessary documents were

executed in favour of D.Hr.

(b) Since, the J.Drs failed to repay the installments/

amount, D.Hr filed application before the Sub Division

Cooperative Officer, Rajamahendravaram for recovery of

amount. After enquiry, certificate under Section 71 (1) of the

Andhra Pradesh Cooperative Societies Act, 1964 (for short

"APCS Act"), in Case No.137 of 2002-2003 dated 24.07.2002,

was issued to pay a sum of Rs.6,37,250/- together with

further interest @17.5%. J.Drs filed appeal before the A.P.

Cooperative Tribunal, Visakhapatnam vide O.A.No.139 of

2004. Appeal was allowed by the Tribunal on 05.07.2005

and the matter was remanded back to the Deputy Registrar of

Cooperative Societies, Rajamahendravaram for fresh disposal.

(c) D.Hr preferred an Arbitration Petition under Section

61 of the APCS Act before the Deputy Registrar of Cooperative

SRSJ, CRPs 458, 598, 585 of 2022

Societies, Rajamahendravaram vide Claim No.740 of 2005 to

pass an award for Rs.11,18,173/-. After issuing notices to

J.Drs, the Deputy Registrar of Cooperative Societies allowed

the claim by award dated 30.06.2006 under Section 62 of the

APCS Act for Rs.11,18,173/- with interest @17.5% on

quarterly compound. J.Drs filed O.A.No.115 of 2006 before

the A.P. Cooperative Tribunal, Visakhapatnam. The appeal

was dismissed on 04.06.2008. Aggrieved by the same, J.Drs

filed W.P.No.12647 of 2008 and the same was dismissed on

24.03.2011. W.A.No.402 of 2011 filed by them was also

dismissed on 17.07.2011.

(d) D.Hr filed E.P.No.43 of 2015-2016 before the Deputy

Registrar of Cooperative Societies, Rajamahendravaram. After

following the procedure, property mortgaged was put to sale

and the sale date was fixed on 04.04.2016. In the sale

conducted, the auction purchaser became the highest bidder

for Rs.61,00,000/-, sale was confirmed on 22.06.2016, sale

certificate was issued on 04.04.2014 and the same was

registered on 06.04.2017.

SRSJ, CRPs 458, 598, 585 of 2022

(e) J.Drs filed W.P.No.9106 of 2017 against the

confirmation of sale and the same was dismissed on

20.03.2017. J.Drs filed O.A.No.192 of 2016 on the file of A.P.

Cooperative Tribunal, Vijayawada, challenging interest rate

alone. The said O.A. was dismissed on 21.03.2018.

(f) Claim petitioner, son of J.Drs, filed Claim Petition

No.1 of 2016 on 04.04.2016 before the Deputy Registrar of

Cooperative Societies, Rajamahendravaram, after completion

of auction process, contending that his grandmother gifted

195 square yards; that D.Hr wrongly shown the gifted

property as mortgage property and is trying to get the auction

conducted. The said claim petition was dismissed on

21.06.2016. Claim petitioner also filed suit O.S.No.99 of

2016 on the file of Additional District Judge,

Rajamahendravaram seeking declaration of his right in

respect of 175.58 square yards. In the suit, I.A.No.842 of

2016 was filed under Order XXXIX Rules 1 and 2 of CPC.

Initially, order of status quo was granted and later the same

was vacated on merits on 10.03.2017.

SRSJ, CRPs 458, 598, 585 of 2022

(g) Auction purchaser filed E.P.No.173 of 2017 under

Rule 52 (15) of the Andhra Pradesh Cooperative Societies

Rules, 1964 (for short "APCS Rules") and under Order XXI

Rule 95 of CPC on the file of Principal District Judge, East

Godavari, Rajamahendraaram seeking delivery of property.

In the said E.P., claim petitioner filed E.A.No.1622 of 2017

under Order XXI Rule 97 of CPC. Pending the said claim

petition, the claim petitioner filed statutory appeal against the

order dated 21.06.2016 in Claim Petition No.1 of 2016 vide

OASR No.153 of 2018 with delay. Claim petitioner also filed

W.P.No.7702 of 2019 and the same was disposed of directing

the Tribunal to pass order in M.A.No.51 of 2018 in OASR

No.153 of 2018. Initially, in W.P.No.7702 of 2019 interim

orders were passed and later, interim order was vacated on

21.10.2019.

(h) In E.A.No.1622 of 2017 under Order XXI Rule 97 of

CPC filed by claim petitioner, auction purchaser filed

E.A.No.83 of 2020 under Section 151 of CPC to decide the

maintainability of E.A.No.1622 of 2017 in E.P.No.173 of

2017. The Court below by order dated 15.02.2022 allowed

SRSJ, CRPs 458, 598, 585 of 2022

E.A.No.83 of 2020 and as a consequence, claim petition in

E.A.No.1622 of 2017 in E.P.No.173 of 2017 filed by claim

petitioner is held to be not maintainable.

6. Aggrieved by the order dated 15.02.2022 in E.A.No.83

of 2020, C.R.P.No.456 of 2022 is filed.

7. Since E.A.No.83 of 2020 is allowed, the Court below

order E.P.No.173 of 2017 filed by the auction purchaser on

10.03.2022 to deliver the property. Aggrieved the same, the

claim petitioner filed C.R.P.No.598 of 2022 is filed.

8. Aggrieved by the order, ordering delivery of property in

E.P.No.173 of 2017, the J.Drs filed C.R.P.No.585 of 2022.

9. Heard Sri K.Chidambaram, learned senior counsel

representing Sri G.Yaswanth, learned counsel for claim

petitioner; Sri V.V.N.Narayana Rao, learned counsel for

auction purchaser and Sri Basava Srinivas, learned counsel

for Decree Holder and Sri Narasimha Rao Gudiseva learned

counsel appearing for Judgment debtors.

SRSJ, CRPs 458, 598, 585 of 2022

10. Learned senior counsel would submit that the property

mortgaged to the bank is 94 sq. yards and auction was

conducted in respect of 94 sq. yards and sale certificate was

also issued for 94 sq. yards. However, under the guise of sale

certificate, the auction purchaser is trying to get delivery of

175.58 sq. yards, gifted to claim petitioner by his

grandmother by way of registered gift deed dated 18.03.2013.

He would also submit that mortgaged property and the

property gifted in favour of claim petitioner are adjacent and

same door number was assigned to both the properties. He

would submit that E.A.No.83 of 2020 filed by the auction

purchaser could not have been entertained and Section 11 of

CPC as no application. He would also submit that S.No.306,

where the property is situated is sub-divided. If an advocate

commissioner is appointed, it will be easy to identify both the

properties. Counsel appearing for J.Dr adopted the

arguments of learned senior counsel.

11. On the other hand, learned counsels appearing on

behalf of auction purchaser and D.Hr supported the order of

the Court below.

SRSJ, CRPs 458, 598, 585 of 2022

12. In view of the above contention and material on record,

the following point falls for consideration:

Whether the order passed by the Court below in E.A.No.83 of 2020 is sustainable?

13. The factual matrix referred to supra, would disclose

that J.Drs mortgaged the property of 94 sq. yards with Door

No.85-6-32, V.L.Puram, Rajamahendravaram. J.Drs also

admitted about their securing loan from the D.Hr. Pursuant

to passing of award dated 30.06.2006, mortgaged property

was put to sale and the auction purchaser became the

highest bidder. Sale was confirmed on 22.06.2016, sale

certificate was issued on 04.04.2017 and it was registered on

06.04.2017.

14. When the property was put to sale, claim petitioner

filed claim petition No.1 of 2016 before the authority and the

same was dismissed on merits. Against which, he has filed

statutory appeal OASR No.153 of 2018 with delay and the

same is pending before the Tribunal. Auction purchaser filed

E.P.No.173 of 2017 under Order XXI Rule 95 of CPC and

under Rule 52 (15) of APCS Rules.

SRSJ, CRPs 458, 598, 585 of 2022

15. It is apt to extract Rule 52 (15) of APCS Rules, which

reads thus:

"(15) Where any lawful purchaser of immovable property is resisted and prevented by any person, other than a person (not being the defaulter) claiming in good faith to be in possession of the property on his own account from obtaining possession of the immovable property purchased, any Court of competent jurisdiction, on application and production of the certificate of sale, provide for by sub-rule (14) shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the immovable property purchased has been decreed to the purchaser by a decision of court."

16. A plain reading of the above sub-rule would indicate

that after completion of sale and issuance of sale certificate

under the provisions of the APCS Act, when it comes to

delivery, in case of any resistance and prevention, the auction

purchaser, by virtue of the above provision, is allowed to

move application before the Civil Court.

17. Civil Court, as per the language employed in Rule

52(15) of the Rules, will not go into or deal with the merits of

the petition filed seeking delivery of property. In fact, separate

mechanism is provided under APCS Act and the Rules made

thereunder regarding claim petitions and also appeal against

SRSJ, CRPs 458, 598, 585 of 2022

the orders passed. Civil Court is conferred with the power to

deliver property alone under sub-rule 15 of Rule 52 of the

APCS Rules. In Rule 52 of the APCS Rules, procedure is

prescribed regarding conducting of auction, confirmation,

making of application by either side to set aside auction or

claim petition etc. In fact, as per Section 121 of the APCS

Act, the jurisdiction of civil Court is specifically barred.

When mechanism is provided under APCS Act and the Rules

made thereunder, filing claim petition in the E.P. filed by

auction purchaser seeking delivery of property, in the opinion

of this court, such a claim petition, itself is not maintainable.

18. Claim petitioner, in fact, filed claim petition No.1 of

2016 in CEP No.43 of 2015-2016 before the Deputy Registrar

of Cooperative Societies, Rajamahendravaram and the same

was dismissed on 21.06.2016. Against the said dismissal, he

filed a statutory appeal under Section 76 of the APCS Act

before the Tribunal with delay and the same is pending

consideration.

19. As can be seen from the record, claim petition filed

statutory appeals vide OASR No.153 of 2018 and OASR

SRSJ, CRPs 458, 598, 585 of 2022

No.167 of 2018 under Section 76 of the APCS Act and the

same are pending consideration before the appellate

authority. Claim petitioner ought to have taken steps before

the appellate authority to pass appropriate orders in the

appeals. Even J.Drs also filed appeal before the appellate

authority. In fact, as can be seen from the record, claim

petitioner filed W.P.No.7702 of 2019 against M.A.No.51 of

2018 in OASR No.153 of 2018 and M.P.No.123 of 2018 in

OASR No.167 of 2018. Initially, interim order was granted in

I.A.No.1 of 2019, however, the same was vacated.

20. Civil Court, in view of bar under Section 121 of the

APCS Act, in the opinion of this Court cannot decide the

claim petition in E.A.No.1622 of 2017. In fact, the Court

below concluded that it has no jurisdiction to entertain the

claim petition and hence, the claim petition in E.A.No.1622 of

2017.

21. As can be seen from the material available on record,

J.Drs being mother and father and the claim petitioner, being

the son filed nearly 19 cases including the above three CRPs

at different forums after initiation of proceedings by D.Hr. to

SRSJ, CRPs 458, 598, 585 of 2022

recover the amount pursuant to the default committed by the

J.Drs.

22. The property mortgaged to the Bank is bearing Door

No.85-6-32 and in respect of the same property, proceedings

were taken place. E.P.No.173 of 2017 was filed under Rule

52 (15) of the APCS Rules and under Order XXI Rule 95 of

CPC to depute Amin to deliver the property as per the sale

certificate. As per the sale certificate, the schedule property

mentioned is bearing Door No.85-6-32, R.S.No.306, G+1 RCC

Building, V.L.Puram, Rajamahendravaram, East Godavari

District.

23. The Court below by following the procedure ordered

delivery of property in E.P.No.173 of 2017. This Court does

not find any illegality in the order dated 10.03.2022.

24. In view of discussion made supra, this Court does not

find any illegality or perversity to interfere with the order

dated 15.02.2022 in E.A.No.83 of 2020 in E.A.No.1622 of

2022 in E.P.No.173 of 2017 on the file of Principal District

Judge, East Godavari, Rajamahendravaram. This court also

SRSJ, CRPs 458, 598, 585 of 2022

doesn‟t find any illegality in the order dated 10.03.2022 in

E.P.No.173 of 2017 in C.E.P.No.43 of 2015-2016 on the file of

Principal District Judge, East Godavari, Rajamahendravaram.

The revision petitions lacks merit and the same are liable to

be dismissed.

25. Accordingly, three Civil Revision Petitions are

dismissed. No costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

30th January, 2023

PVD