Kathi Balaji vs S. Sathyanarayana,
2023 Latest Caselaw 3064 AP

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

MAIN CASE No.: S.A.No.174 of 2023


                            PROCEEDING SHEET

Sl.                                                                        OFFICE
                                             ORDER

No      DATE                                                                NOTE

05.   11.05.2023   Dr. VRKS, J

                                      I.A.No.1 of 2023

Appellant in this second appeal filed this application under Order XXXIX Rules 1 and 2 C.P.C. seeking for a temporary injunction restraining the respondent from interfering with peaceful possession and enjoyment of the disputed property pending disposal of the second appeal.

Respondent filed a counter affidavit raising the protest for the prayer that is sought for.

Learned counsel on both sides submitted arguments.

Point for determination is:

Whether the case is made out for granting a temporary injunction?

Point:

There is one Mr. K.Ravi Kumar. He owns immovable property. He was indebted to a creditor and failed to repay. The creditor filed O.S.No.212 of 2006 seeking for recovery of money and obtained an attachment before judgment through an order of the Court and subsequently, the suit was tried and was decreed in favour of the creditor. In execution of the decree E.P.No.113 of 2006 was filed and the attached property was brought for sale and the creditor/D.Hr. participated in the auction and became the highest bidder and obtained a sale certificate and thereafter obtained delivery of possession of the property he purchased and all this occurred during the year 2008. That title holder under sale certificate is the respondent in this second appeal.

As against the above narration of facts, there is another sequence as per which the said Sri K.Ravi Kumar under a registered gift deed dated 16.05.2005 donated his property in favour of petitioner/plaintiff. The donee under the registered gift deed stated to have obtained pattadar and title deed pass books and claims to have been in possession of the property. That donee filed O.S.No.101 of 2009 seeking for declaration of his title and right and also sought for a permanent injunction against the donor referred earlier. After due trial and on considering the oral and documentary evidence on both sides, learned Principal Junior Civil Judge, Madanapalle granted decree in favour of petitioner/plaintiff declaring him as a title holder of the property and believing his possession over the property, it also granted permanent injunction.

The auction purchaser who was defendant in the said suit preferred A.S.No.38 of 2017 and learned II Additional District Judge, Madanapalle by a judgment dated 17.02.2023 set aside the judgment of the trial Court and thereby allowed the appeal. Aggrieved of the judgment of the first appellate Court, the plaintiff filed this second appeal.

On 18.04.2023 after considering rulings in Arulmighu Nellukadai Mariamman Tirukkoil v. Tamilarasi (dead) by legal representatives ((2019) 6 SCC 686) and Kaliaperumal v. Rajagopal (LAWS (SC) 2009 2 136), the second appeal was admitted on formulating substantial questions of law. While the second appeal has been coming up for final hearing, the appellant has sought for this interim injunction by filing the present application.

During the course of hearing, learned counsel for petitioner/appellant cited V.Swarajyalaxmi v. Authorised Officer, Land Reforms, Medak (LAWS (SC) 2003 4 80), for the proposition that in a case where a judgment debtor had no saleable interest, no title would pass on to the purchaser in a Court auction. In the absence of a valid title being passed through Court auction sale, the consequential proceedings that occurred in that sale and execution of the decree stand vitiated. It is on this ruling the petitioner/ appellant contend that by the time the Court auction took place the judgment debtor therein was divested of his title and therefore all the contentions of respondent do not merit consideration.

As against this, learned Senior Counsel appearing for respondent submit that delivery of property by the executing Court having been recorded the same cannot be discounted and if really the petitioner/appellant is in possession, he would have raised his protest making his claim as provided under Order XXI C.P.C. and that no interim injunction can be granted in favour of the appellant who is not in possession of the property.

While all the meritorious contentions on both sides deserve appropriate hearing and consideration, while taking a decision in the second appeal, it may be stated here that the possession of the petitioner/appellant have been recognized by the trial Court by its judgment. The said position stood continued till the first appeal was disposed of on 17.02.2023. It is in such circumstances, it is in the interest of justice to grant interim injunction especially in the context of substantial questions that were formulated in this second appeal. Therefore, the point is answered in favour of the petitioner/appellant.

In the result, this Application is allowed granting interim injunction restraining the respondent from interfering with the possession and enjoyment of the suit disputed property till disposal of the second appeal.

_____________ Dr. VRKS, J S.A.No.174 of 2023 For hearing, list the matter after eight (8) weeks.

_____________ Dr. VRKS, J Ivd