Andhra Pradesh High Court - Amravati
N.Krishna Rao vs M.Ramya 2 Others on 19 June, 2024
APHC010274042005
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY, THE NINETEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
APPEAL SUIT No.538 OF 2005 &
CROSS OBJECTIONS (SR) No.19011 OF 2005 IN
APPEAL SUIT No.538 OF 2005
Between:
1. N.KRISHNA RAO, S/O.VISWANADHAM BUSINESS
R/O.NANDIGAMA, KRISHNA DISTRICT.
...APPELLANT
AND
1. M RAMYA , D/O.VENKATESWARLU R/O.NANDIGAMA, KRISHNA
DISTRICT.
2. M SUMANTH, REP BY HIS GUARDIAN & MOTHER SMT.
M.KOTESWARI R/O.NANDIGAMA, KRISHNA DISTRICT.
3. M VENKATESWARLU, S/O.SATYANARAYANA R/O.NANDIGAMA,
KRISHNA DISTRICT.
...RESPONDENT(S):
Counsel for the Appellant:
1. VEMURU VP LAKSHMINARASIMHA MURTHY
2
Counsel for the Respondent(S):
1. M CHALAPATI RAO
2. B NARASIMHA SARMA
3. M C JACOB
The Court made the following:
COMMON JUDGMENT:
-
This Appeal, under Section 96 of the Code of Civil Procedure [for
short 'the C.P.C.'], is filed by the Appellant/first defendant challenging the
Decree and Judgment, dated 22.07.2005, in O.S. No.7 of 2004 passed by
the learned Senior Civil Judge, Nandigama [for short 'the trial Court'].
The Respondents herein are the plaintiffs and second defendant in the
said Suit. The plaintiffs filed cross objections for dismissal of damages by
the trial Court.
2. The plaintiffs filed a suit against the defendants 1 and 2 for claiming
the relief of declaration that the sale held on 11.08.2003 in respect of
plaint schedule property in E.P.No.39 of 2001 in O.S.No.56 of 1999 of the
same Court i.e., Senior Civil Judge's Court, Nandigama is null and void
and the plaintiffs sought the relief of recovery of possession of the plaint
schedule property and also granting damages of Rs.2,00,000/- from the
defendants.
3. Both the parties in the Appeal will be referred to as they are
arrayed before the trial Court.
4. The brief averments of the plaint, in O.S.No.7 of 2004, are as under:
The plaintiffs are the absolute owners of the schedule property. The
plaintiffs and their father i.e., second defendant partitioned the joint family
properties on 26.07.2001 through a registered partition deed. In that
partition, the plaint schedule property fell to the share of the plaintiffs. In
the first week of June 2003 the plaintiffs came to know that the plaint
schedule property will be auctioned on 07.06.2003 in the Court of Senior
Civil Judge, Nandigama. They learnt that the first defendant filed suit
against the second defendant in O.S.No.56 of 1999 obtained decree and
filed E.P.No.39 of 2001 and got attached five items of immovable
properties including the schedule property and that the sale was
adjourned from 09.06.2003 to 11.08.2003. The second defendant has no
saleable interest over the schedule property by the date of attachment by
the Court below on 21.10.2001. The first defendant is aware of the same.
He filed suit in O.S.No.1 of 2002 for cancellation of the partition deed
dated 26.07.2001. Both the defendants colluded together and brought the
schedule property for sale. On 11.08.2003 sale was conducted by the
executing Court. Before the sale, the plaintiffs approached the Court and
filed claim petition under Order XXI Rule 58 C.P.C. and it was returned by
the Court and subsequently they represented the petition, but it was
rejected and sale was confirmed by the executing Court. The first
defendant filed E.A.No.191 of 2003 in the above said E.P. for delivery of
the schedule land and on 17.11.2003 the trial Court issued delivery
warrant. In the middle of the year, delivery warrant cannot be issued
without giving prior notice to the parties. The Amin report also shows that
there was standing crop, but he did not mention the actual height of the
crop. Paper delivery is not valid while there was standing crop. The
plaintiffs were in actual possession and enjoyment of the schedule land.
In the first week of April 2004 the first defendant and his men
highhandedly occupied the schedule land, removed the standing Subabul
crop with a J.C.B. machine, taking advantage of the delivery warrant, and
dispossessed the plaintiffs from the schedule land, because of the
highhanded acts of the first defendant, the plaintiffs sustained loss of
Rs.2,00,000/- towards damages caused to the standing Subabul crop.
5. The first defendant filed a written statement and additional written
statement, by denying the averments mentioned in the plaint and further
contended as under: -
After obtaining decree against the second defendant for the
amount borrowed by him, the first defendant filed E.P. and brought the
schedule property to sale legally. There is no collusion between him and
the second defendant. After the decree, the second defendant brought
into existence of the alleged partition deed, with a view to avoid the debt
under the decree. The amount borrowed by the second defendant is for
the benefit of the joint family business only. The plaintiffs are liable to
discharge the debt under pious obligation. Even though partition is there,
they are enjoying the schedule property jointly. The Court Amin delivered
the property as per law. Since the date of delivery, the first defendant is in
possession and enjoyment of the plaint schedule property. The Court
Amin noted about the Subabul plaints in his report, but it was not standing
crop. The present standing Subabul crop was only growth on the stump
on cut Subabul plants. It was not the crop raised by the plaintiffs. The
possession of the first defendant is legal and under valid title. The
plaintiffs are not entitled to file the suit for cancellation of sale.
6. The second defendant filed a written statement and additional
written statement. The contents of the same are as under: -
The second defendant has no saleable interest over the schedule
property. The plaintiffs and the second defendant partitioned their joint
family properties on 26.07.2001 under registered partition deed with
metes and bounds in which the plaint schedule property fell to the share
of the plaintiffs and since then they are in possession and enjoyment of
the same as absolute owners.
7. Based on the above pleadings, the trial Court framed the following
issues:
(i) Whether the plaintiffs are the absolute owners of the
plaint schedule property?
(ii) Whether the plaintiffs are entitled to the declaration and
possession of the schedule property as prayed for?
(iii) To what relief?
8. During the course of trial in the trial Court, on behalf of the Plaintiffs,
PW1 to PW4 were examined and Ex.A1 to Ex.A17 were marked. On
behalf of the Defendants DW1 to DW3 were examined, however no
documents were marked.
9. After completion of the trial and on hearing the arguments of both
sides, the trial Court decreed the suit, vide its judgment, dated
22.07.2005, in part and granted relief of declaration and also granted the
relief of possession, and the relief of damages was negatived by the trial
Court. Aggrieved against the said decree and judgment, the first
defendant filed this appeal. The plaintiffs filed cross objections for
dismissal of damages by the trial Court.
10. Heard Ambadipudi Satyanarayana, learned senior counsel on
behalf of Sri V.V.P.Lakshmi Narayana Murthy, learned counsel for
appellant and Sri M.Chalapathi Rao, learned counsel for respondents/
cross objectors.
11. Learned counsel for appellant would contend that the suit is not
maintainable as the plaintiffs have not chosen to challenge the sale
during the execution proceedings in E.P.No.39 of 2001 in O.S.No.56 of
1999. He would further contend that the alleged partition deed as pleaded
by the plaintiffs is nothing but a collusive and created one for the purpose
of evading the debt of the appellant herein and that the same will not
create any right or confer any title on the plaintiffs and the said partition
deed is created for the purpose of filing of the suit. He would further
contend that the Court below have conducted the sale and confirmed the
sale in favour of the appellant herein and possession was also delivered
by the Court and the same was recorded, but the trial Court wrongly
came to conclusion that the sale is null and void. He would further
contend that the trial Court failed to consider the correct legal position
and decreed the suit erroneously.
12. Per contra, the learned counsel for respondents/cross objectors
would contend that on appreciation of the entire evidence on record, the
trial Court rightly held the sale of the schedule property held by the Court
in E.P.No.39 of 2001 dated 11.08.2003 is not valid and the trial Court also
ordered the recovery of possession of the schedule property. He would
further contend that instead of awarding damages, the trial Court
dismissed the said relief and that the respondents/plaintiffs filed cross
objections to set aside the finding given by the trial Court so far as the
damages are concerned.
13. Having regard to the pleadings in the Suit and the findings
recorded by the trial Court and in the light of rival contentions and
submissions made on either side before this court, the following points
would arise for determination:
i. Whether the plaintiffs in O.S.No.7 of 2004 on the file of Senior
Civil Judge Court, Nandigama are entitled the relief of
declaration that the sale of schedule property held by the
Senior Civil Judge's Court, Nandigama on 11.08.2003 in
E.P.No.39 of 2001 in O.S.No.56 of 1999 of Senior Civil
Judge's Court, Nandigama is null and void?
ii. Whether the plaintiffs are entitled the relief of recovery of
possession of suit schedule property from the appellant/first
defendant?
iii. Whether the trial Court is justified in decreeing the relief of
declaration and possession and dismissing the relief of
damages?
14. Point Nos.1 to 3:
The case of the plaintiffs is that they are the absolute owners and
the possessors of the plaint schedule property and the plaintiffs and their
father i.e., second defendant herein partitioned their joint family properties
on 26.07.2001 by metes and bounds under a registered partition deed
and in the said partition the plaint schedule properties were fell to the
share of the plaintiffs and the plaintiffs have been in possession and
enjoyment of the plaint schedule property as absolute owners and at the
time of partition their mother Koteswari acted as a next friend. The
plaintiffs further pleaded that in the first week of June 2003 the plaintiffs
came to know that the plaint schedule landed properties will be auctioned
on 07.06.2003 and later enquired into the matter and came to know that
there are disputes between the first defendant and the second
defendants and the first defendant filed a suit against the second
defendant in O.S.No.56 of 1999 and the same was decreed and the first
defendant filed execution petition and auction was conducted in execution
proceedings on 09.06.2003, later sale certificate was issued to the first
defendant and property was also delivered to the first defendant. The
plaintiffs further pleaded that the second defendant is not having any right
and title in the plaint schedule property.
15. The case of the second defendant is that he is not having any
salable interest and he is not having right and title in the plaint schedule
property and the plaintiffs are having right and title in the plaint schedule
property. He is totally supporting the plaintiffs.
16. In order to prove the case of the plaintiffs, the mother of the
plaintiffs is examined as PW1. The first plaintiff is examined as PW2. The
contents of the plaint are reiterated in the evidence affidavits of PW1 and
PW2. In cross examination PW1 admits that they did not issue any notice
to her husband asking him to divide the properties and in the registered
partition only half acre land was given to her husband from out of the
entire properties. PW2, who is none other than the first plaintiff admits
since the date of delivery of the property, the first defendant is in
possession of the plaint schedule property. PW3 and PW4 stated in their
evidence affidavits that the first defendant or anybody did not come to the
suit schedule land on 19.11.2003 on which date they were in their lands.
They further deposed that on 06.04.2004 the first defendant and his men
came to the suit schedule land with JCB machine and removed the
standing crop. The first plaintiff i.e., PW2 herself admitted since the date
of delivery the first defendant has been in possession of the plaint
schedule property. Admittedly the property was delivered by the Field
Assistant of the Court on 19.11.2003. PW4 another witness of the
plaintiffs also admits that from the date of taking possession through
Court, the first defendant is in the possession of the plaint schedule
property. As stated supra, the date of delivery through Court amin by the
plaintiffs is that 19.11.2003, therefore, the own admissions of first plaintiff
and PW4 falsified the contents of chief affidavits of PW2, PW3 and PW4
that the first defendant or anybody did not come to the field on
19.11.2003 and on 06.04.2004 the first defendant and his men came over
to the suit schedule property and dispossess the plaintiffs from out of the
land.
17. The material on record reveals that the second defendant borrowed
an amount of Rs.1,00,000/- from the appellant on 25.02.1992 and
promised to repay the same with interest @ 24% p.a. and after receipt of
consideration of Rs.1,00,000/- the second defendant executed a hand
letter and since the said amount was not paid the first defendant/
appellant herein demanded for repayment of the amount but the second
defendant failed to pay the same and that the first defendant filed a civil
suit in O.S.No.212 of 1995 on the file of I Additional Sub-ordinate Judge,
Vijayawada against the second defendant and the remaining partners of
the firm for recovery of amount of Rs.1,72,000/- and ultimately the said
suit was transferred to Senior Civil Judge's Court, Nandigama and
numbered as O.S.No.56 of 1999. Furthermore, in the suit in O.S.No.56 of
1999, the first defendant herein i.e., the plaintiff in that suit, sought
attachment of item No.2 of the plaint schedule property which relates to
the second defendant herein an extent of Ac.6.13 cents in R.S.No.58/1
situated in Lachapalem village of Nandigama Mandal and the Civil Court
ordered conditional attachment before judgment on 25.04.1995 and the
second defendant failed to furnish sufficient security and that the said
attachment was effected on 18.05.1995 and ultimately the said suit in
OS.No.56 of 1999 was decreed and attachment effected on item Nos.1
and 2 in that suit belongs to the second defendant herein was made
absolute on 29.06.2001 and the attachment over item Nos.3 and 4
belongs to other defendants were raised and the suit was dismissed
against the other defendants in the said suit. Though the second
defendant herein filed an appeal to challenge the said decree and
judgment vide A.S.No.2159 of 2001, the said appeal was also dismissed
by this Court and the decree and judgment passed by the Senior Civil
Judge's Court Nandigama in OS.No.56 of 1999 was upheld on
30.04.2022 and later the sale was conducted by the Senior Civil Judge's
Court, Nandigama on 11.08.2003 by following prescribed procedure and
the first defendant herein is the successful bidder and the same was
confirmed and the sale certificate was issued to the first defendant on
04.11.2003 and property was also delivered to the first defendant herein
by the Senior Civil Judge's Court, Nandigama on 19.11.2003.
18. Furthermore, after decreeing the suit in OS.No.56 of 1999 the
plaintiffs 1 and 2 herein and their father i.e., second defendant herein
executed a registered partition deed under document No.2033 of 2001 of
Sub-Registrar Office, Nandigama, wherein a major portion of Ac.5.63
cents in S.No.58/1 was allotted to the plaintiffs herein to defeat the fruits
of the decree passed in O.S.No.56 of 1999. The above circumstances
clearly reveals that after decreeing the suit and attachment of the
schedule property is made absolute on 29.06.2001, within one month the
defendant in the above said suit i.e., defendant No.2 herein and his sons
got executed registered partition deed within one month i.e., on
26.07.2001 to defeat the rights of the plaintiff in the above said suit.
Another important aspect is that the contention of the plaintiffs herein is
that the second defendant is their father and second defendant is residing
at Vijayawada separately, but the own document of the plaintiffs i.e.,
Ex.A17 registered partition deed goes to show that, in the partition deed
in description portion of the registered partition deed dated 26.07.2001,
there was a specific recital that the plaintiffs, their mother and their father
i.e., second defendant herein, all are residing together under one roof and
the plaintiffs are under the care and custody of second defendant and his
wife. Therefore, the contention of the plaintiffs that the second defendant
used to reside separately at Vijayawada is nothing but a false.
19. As stated supra, after obtaining decree, the first defendant herein
filed an execution petition in E.P.No.39 of 2001 under Order XXI Rule 54,
64 and 66 of Civil Procedure Code for attachment and sale of the
properties of the second defendant herein. Though the attachment in
respect of the suit schedule property herein was obtained a way back in
the year 1995, again the decree holder in the execution proceedings
sought attachment of the schedule property. Admittedly, the attachment
before judgment order passed in the suit in O.S.No.56 of 1999 was made
absolute on 29.06.2001 itself.
20. In the case on hand, the plaintiffs are relying on the partition deed
Ex.A17 which is disputed by the appellant herein. The appellant herein
pleaded that the said partition deed is a collusive document and created
one and it is a fraudulent document. Therefore, the burden heavily lies on
the plaintiffs to prove the genuineness of the said partition deed.
Admittedly no single document is filed to show the source of title of the
second defendant and no document is filed by the plaintiffs to prove the
jointness of both the parties in the suit. Furthermore, the contention of the
plaintiffs herein is that their father i.e., second defendant herein is
residing at separate place at Vijayawada and the plaintiffs are residing at
Nandigama and the second defendant is not attending their welfare. The
said contention is falsifies the contents of Ex.A17 partition deed itself. In
Ex.A17 partition deed, it was described, the address of the plaintiffs 1 and
2 and the second defendant is shown as they are residing at Nandigama
under one roof and the plaintiffs are under the care and custody of their
mother and father i.e., second herein. As stated supra, the attachment of
plaint schedule property herein was made absolute on 29.06.2001. The
said partition deed was obtained by the plaintiffs on 26.07.2001
subsequent to passing of decree in O.S.No.56 of 1999 and subsequent to
the attachment made absolute and to defeat the rights of the first
defendant herein, the second defendant and plaintiffs herein brought into
existence of the alleged registered partition deed. It is well settled that all
the disputes arose between the parties in execution Court shall be
determined by the executing Court and not by a separate suit as laid
under Section 47 of Civil Procedure Code. The fact remains that the
appellant herein claimed the suit schedule property by way of sale
certificate issued by the trial Court. The law is also well settled that when
a sale in execution of decree is impugned on the ground that it is not
warranted by the terms thereof that question could be agitated when it
arises before the parties to the decree only by an application under
Section 47 of Civil Procedure Code and not in a separate suit. In the case
on hand the second plaintiff represented by guardian filed a petition in
E.A.No. /2003 (un-numbered) on 01.12.2003 under Order XXI Rule 97
of Civil Procedure Code with a prayer to record the obstruction to
possession of the immovable property and sought stay of delivery
proceedings and also sought the relief to set aside the attachment order
and the said application was returned with an endorsement about the
maintainability of the petition and though the said petition was
resubmitted on 02.12.2003 again the same was returned on 05.12.2003.
But for the reasons best known to the second plaintiff, the second plaintiff
did not re-submit the return petition and without prosecuting the same
they approached the Court below with a prayer to set aside the sale
conducted by the Senior Civil Judge's Court, Nandigama in an execution
proceedings in E.P.No.39 of 2001 as null and void.
21. The claim of the plaintiffs is that their title is based on the alleged
registered partition deed dated 26.07.2001. Admittedly it is not a title
document to the parties. It is only a family arrangement made in between
the family members i.e., the plaintiffs and their father i.e., second
defendant herein. Plaintiffs herein being a daughter and son of second
defendant are the parties to the said document. In general, whenever the
total properties are partitioned in between the family members, all the
sharers are entitled equal share. Admittedly the total extent of property in
Ex.A17 is Ac.6.13 cents but only a meagre extent of Ac.0.50 cents was
given to second defendant and the remaining portion of total extent i.e.,
Ac.5.63 cents were allotted to the plaintiffs herein. The reason for allotting
less extent of share to the second defendant is not stated by the parties
in Ex.A17. Furthermore, it is the case of the plaintiffs that their father is
residing at Vijayawada and the plaintiffs are residing at Nandigama with
their mother. It is quite surprise to note in Ex.A17, it was specifically
mentioned, that the plaintiffs herein and their father i.e., second
defendant are residing under one roof at Nandigama and the plaintiffs are
under the care and custody of their mother and father i.e., second
defendant herein. The aforesaid facts clearly go to show that the suit in
O.S.No.56 of 1999 was decreed on 29.06.2001 on contest and during the
pendency of the said suit the auctioned E.P. schedule property i.e., plaint
schedule property herein was attached on 18.05.1995 and the same is
made absolute on 29.06.2001 on which date the suit is decreed.
Therefore, by the date of alleged partition deed dated 26.07.2001 the
second defendant is having knowledge about the attachment was made
absolute and passing decree on contest, by the defendants 1 and 2, on
29.06.2001. Therefore, attachment will prevail over the alleged document
of partition deed. On knowing the decree and attachment on the property
is made absolute in the suit proceedings within a month, Ex.A17 alleged
partition deed is fraudulently brought into existence in between the family
members i.e., children and their father i.e., plaintiffs and second
defendant. It is not the case of the plaintiffs that their father is addicted to
vices and wasting the joint family property for immoral and illegal
activities being a Kartha of the family. No single allegation is levelled
against their father by the plaintiffs either in Ex.A17 partition deed or in
the plaint. The second respondent i.e., second plaintiff filed a petition in
E.A. /2003 (un-numbered petition) before the executing Court on
01.12.2003 under Order XXI Rule 97 of Civil Procedure Code with a
prayer to record the obstruction of the possession of immovable property,
that application was returned on the ground of maintainability, but later
the second plaintiff did not prosecute the said application. The relief
claimed in the present suit is to declare the sale conducted by Senior Civil
Judge's Court, Nandigama in respect of plaint schedule property is null
and void. The law is well settled that all the disputes between the parties
in executing Court or a third party to the suit proceedings in executing
Court shall be determined by executing Court alone and not by a
separate suit as laid under Section 47 of Civil Procedure Code. Here the
second defendant who contested the suit proceedings and being
aggrieved thereby decree and judgment passed by the trial Court the
second defendant also filed an appeal before this Court and the same
was dismissed by confirming the decree and judgment passed by the trial
Court.
22. The plaintiffs i.e., respondents 1 and 2 herein are having remedy
under Order XXI Rule 58 of Civil Procedure Code, under Order XXI Rule
91, 92, 97 and Rule 101 and Section 47 of Code of Civil Procedure
before executing Court. But for the reasons best known to the plaintiffs,
the plaintiffs have not sought any relief before executing Court. As stated
supra, though the attachment was ordered on 18.05.1995 in a suit filed by
the plaintiff/appellant herein at Vijayawada and later it was transferred to
Senior Civil Judge's Court, Nandigama and numbered as O.S.No.56 of
1999 and the suit is decreed on 29.06.2001 on contest by both the parties
and the attachment on the plaint schedule property was made absolute
on 29.06.2001. Admittedly the same is not challenged by the plaintiffs.
The plaintiffs filed un-numbered petition before executing Court and the
same was returned with an objection of maintainability by the trial Judge,
the same is not represented and again without complying objections, the
same is represented and the executing Court rejected the said application.
Though the plaintiffs filed a Civil Miscellaneous Appeal before this Court
that was withdrawn by the plaintiffs. Another petition under Order XXI
Rule 97 of Civil Procedure Code is filed by the plaintiffs to consider their
objections and the same was returned but the plaintiffs did not pursue the
same. Therefore, it is clear that the plaintiffs are having knowledge about
the earlier attachment of the suit schedule property which was attached
on 18.05.1995, and the same is also made absolute on 29.06.2001 much
prior to the alleged partition deed, but did not challenge the said
attachment of the suit schedule property. As stated supra, the plaintiffs
and their father are residing under one roof at Nandigama and to defeat
the rights of the creditor i.e., first defendant, the alleged Ex.A17 partition
deed was brought into existence by the second defendant.
23. The learned counsel for plaintiffs would contend that the first
defendant abandoned the said attachment order which was made on
18.05.1995 and sought a fresh attachment after decree of the suit in
execution proceedings and placed a reliance in K.B.V.Nagabhushana
Gupta vs. Ramadugu Venkateswara Rao and others1 of the composite
High Court of Andhra Pradesh. In that case, the composite High Court of
Andhra Pradesh held as follows:
"It is true that Order 21 Rule 58 subclauses 1, 2 and 4 specifically use the
word 'adjudication' where as it is only under Sub-clause 5 the word
'entertain' is used. A simple reading of the provision in the Sub-clause
obviously, and with unmistakable terms, distinguishes the two
expressions namely 'adjudication' and 'entertainment'. While the object
of the claim under Order 21 Rule 58 sub-clause 1 is to adjudicate upon
the claim or the objection, the entertainment or otherwise of the claim
under sub-clause 5 has been actually restricted to the two situations
mentioned in the proviso, namely, where the claim is made after the
property is sold and where the claim was designedly or unnecessarily
delayed (effect of laches) not to entertain the claim at all. In all other
cases except the two mentioned supra, the claim will be adjudicated and
all the questions between the parties including the right, title or interest
in the property attached will be adjudicated. That is why the order
passed as a result of adjudication of a claim will have the force of a
decree and becomes appealable and furthermore bars a suit by virtue of
sub-clauses 4 and 2 of Order Rule 58 of CPC.
1996(3) ALT 100
In the aforesaid case, the composite High Court of Andhra Pradesh
held as follows:
"As the very object of the provision shows, it contemplates the
adjudication of claims or objections in regard to attachment of property. If
the attachment is before the judgment it is governed by Order 38 Rule 5 of
CPC. If it is regarding the immovable property the meaning and method of
attachment is in accordance with Order 21 Rule 54 of CPC. The
attachment will subsist as long as decree is satisfied, as long as the
execution petition survives, and as long as it is not nullified by virtue of the
rejection of the claim of attachment under Order 21 Rule 58 of CPC. The
property so attached will be sold by virtue of Order 21 Rule 64 of CPC. In
other words, attachment precedes the sale. The object of attachment of a
property has to be gathered in the nature and form of order of attachment
either under Order 38 Rule 5 of CPC or Order 21 Rule 50 of CPC. Both
from the provisions and from the prescribed order of attachment, the
moment a property is attached, the judgment debtor will be prohibited
from alienating the property. It need not be said that it becomes effective
the moment an attachment is effected and made absolute or unless it is
raised or determined. It is operative only from the date of effecting the
attachment. If no claim is made by anybody before the sale is effected
after the attachment, the attachment subsists and enures to the benefit of
the decree holder and the auction purchaser. In that view of the matter,
the whole object of attachment is to see that the property which is sought
to be sold in the proceedings of the execution of a decree is kept intact
without alienation so that the right, title and interest of the judgment debtor
is available to be sold by public auction in the execution of a decree. It is
so clear from Order 21 Rule 66 of CPC that a proclamation of sale
consists so many particulars, including encumbrance, any claim and any
other right which the judgment debtor may have and any other person
having any such right ultimately so that it can bind the purchaser of the
property in the court auction. Sub-clause 'c' and 'e' of Sub-clause 2 of
Order 21 Rule 66 are mandatory that the proclamation shall contain any
encumbrance to which the property is liable and every other thing which
the court considers material in order to judge the nature and value of the
property etc."
In the case on hand, the attachment of the auction property i.e.,
plaint schedule property was ordered on 18.05.1995 and the suit was
decreed and attachment was made absolute on contest by both the
parties on 29.06.2001, therefore, the said attachment will be subsisting as
long as the decree is satisfied and as long as it is not nullified by virtue of
rejection of the claim of attachment under Order XXI rule 58 of Civil
Procedure Code. Though the plaintiffs filed applications before the
executing Court, that applications were returned with an objection of
maintainability, subsequently those were not represented and not
pursued, though the plaintiffs filed a Civil Miscellaneous Appeal No.4296
of 2003 challenging the said rejection, they have withdrawn the said Civil
Miscellaneous Appeal. As stated supra, the attachment order was passed
on 18.05.1995 and the same is made absolute on 29.06.2001. The
second defendant who contested in the suit proceedings having
knowledge about the suit proceedings, brought into existence of the
alleged partition deed dated 26.07.2001 and allotted the suit schedule
property i.e., attached property i.e., Ac.5.63 cents to the plaintiffs herein
by allotting meagre share of Ac.0.50 cents to the second defendant.
Therefore, it is undoubtedly clear to defeat the rights of the creditor i.e.,
first defendant, Ex.A17 alleged partition deed is brought into existence.
24. The learned counsel for the plaintiffs placed a reliance in
T.Muniratnam (died) by L.Rs vs. T.Ashok2, in that decision it was held
as follows:
2001 LawSuit (AP) 1667
It may be stated that while considering the object behind the proviso to
Rule 58 of Order 21 CPC a Division Bench of Patna High Court in
Sachida Prasad v. Girija Prasad, AIR 1980 Pat. 136, held that the
purpose of the proviso is to see that execution should not unnecessarily
be encumbered or unduly delayed by allowing frivolous objections from
unconcerned quarters and so when a claim is filed the Court has to look
into the circumstances mentioned in the proviso and if the design of the
objection is to delay execution it shall not investigate into the claim or
objection. If the Court conducts an enquiry and dismisses the petition
filed under Order 21, Rule 58 CPC, such order would be appealable,
and if the petition is summarily rejected under proviso to sub-rule (1) of
Rule 58 of Order 21 CPC separate suit under sub-rule (5) of Rule 58 of
Order 21 CPC is the remedy, it is also held so in K. Venkatarayappa
case (supra) and T.Bhanukumari v. Sait Balwant Raj, 1979 (2) ALT 2
(NRC). In this case since the petition was rejected in limini the remedy
open to the appellant is to file a suit, but not an appeal, more so because
elaborate reasons are given in the order under appeal for the Court
corning to a conclusion that the petition is designedly delayed.
Here, in the case on hand the attachment order was passed in the
suit proceedings itself in the year 1995 and the suit was decreed on
29.06.2001 and the said attachment was made absolute on the date of
decreeing the suit. Admittedly the plaintiffs have not initiated any
proceedings to raise the said attachment which was passed in the year
1995. The plaintiffs filed an application under Order XXI Rule 58 C.P.C
vide G.L.No.2129 of 2003, the same was not numbered and that was
returned with an objection about the maintainability and subsequently that
was rejected, that was not heard on merits, since objection was not
complied the said petition was rejected by the trial Court. Though the
plaintiffs filed a CMA.4296 of 2003 that was also withdrawn by the
plaintiffs. Therefore, the plaintiffs without pursuing the matter before the
executing Court to raise the attachment, filed the present suit. Moreover,
the material on record goes to show that the order of attachment was
passed on 25.04.1995 on the plaint schedule property and the
attachment was effected on 18.05.1995 and the same is made absolute
on 29.06.2001.
25. The learned counsel for appellant would contend that the plaintiffs
failed to plead and prove the necessity of partition and also the debt is an
avyavaharika debt contacted for immoral or illegal purpose by the so-
called kartha i.e., second defendant. Admittedly in the case on hand, the
necessity of partition within a month of passing of decree of suit is not
stated either in Ex.A17 partition deed or in the plaint. There is no whisper
in the plaint or in a return application filed by the plaintiff vide
G.L.No.2129 of 2003 before executing Court that their father contacted
the said debt for illegal or immoral purpose.
26. The learned counsel for plaintiffs relied on a decision of Apex Court
in Vineeta Sharma vs. Rakesh Sharma and others3.
In the case on hand, the alleged registered partition is happened
after 6 years of attachment effected on the plaint schedule property in the
suit proceedings in O.S.No.212 of 1995 and subsequently the suit was
transferred to Senior Civil Judge's Court, Nandigama and numbered as
O.S.No.56 of 1999 and attachment was effected on 18.05.1995 and the
same is made absolute on 29.06.2001.
27. It was held by three Judge Bench of Apex Court in S.M.Jakati and
another vs. S.M.Borkar and others4 as follows:
(2020)9 SCC 1
AIR 1959 SC 282
The liability of the sons is thus unaffected by partition because the pious
duty of the sons to pay the debt of the father, unless it is for an immoral
or illegal purpose, continues till the debt is paid off and the pious
obligation incumbent on the sons to see that their father's debts are paid,
prevents the sons from asserting that the family estate so far as their
interest is concerned is not liable to purge that debt. Therefore, even
though the father's power to discharge his debt by selling the share of
his sons in the property may no longer exist as a result of partition the
right of the judgment creditor to seize the erstwhile coparcenary property
remains unaffected and undiminished because of the pious obligation of
the sons. There does not seem to be any divergence of judicial opinion
in regard to the Hindu son's liability to pay the debts of his father after
partition and by the mere device of entering into partition with their
father, the sons cannot get rid of this pious obligation. It has received the
approval of this Court in 1952 S C R 544 : ( AIR 1952 S C 170) and
1954 SCR 177 : (AIR 1953 S C 487 ) where Mukherjea J., observed in
the latter case at p. 184 (of SCR): (at p. 490 of AIR ).
"It is settled law that even after partition the sons could be made
liable for the pre-partition debts of the father if there was no
proper arrangement for the payment of such debts at the time
when the partition was effected, although the father could have
no longer any right of alienation in regard to the separated
shares of the sons".
Ultimately the three Judge Bench of Apex Cort in the aforesaid
decision came to conclusion and held as follows:
We hold therefore (1) that the liability of the sons to discharge the debts
of the father which are not tainted with immorality or illegality is based on
the pious obligation of the sons which continues to exist in the lifetime
and after the death of the father and which does not come to an end as
a result of partition of the joint family property. All that results from
partition is that the right of the father to make alienation comes to an
end. (2) Where the right, title and interest of a judgment-debtor are set
up for sale as to what passes to the auction-purchaser is a question of
fact in each case dependent upon what was the estate put of for sale,
what the Court intended to sell and what the purchaser intended to buy
and did buy and what he paid for. (3) The words "right, title and interest"
occurring in S. 155, Bombay Land Revenue Code have the same
connotation as they had in the corresponding words used in the Code of
Civil Procedure existing at the time the Bombay Land Revenue Code
was enacted. (4) In execution proceedings it is not necessary to implead
the sons or to bring another suit it severance of status takes place
pending the execution proceedings because the pious duty of the sons
continues and consequently there is merely a difference in the mode of
enjoyment of the property. (5) The liability of a father, who is a managing
director and who draws a salary or a remuneration, incurred as a result
of negligence in the discharge of his duties is not an Avyavaharika debt
as it cannot be termed as "repugnant to good morals."
28. The learned counsel for appellant placed a reliance in Venkatesh
Dhonddev Deshpande vs. Sou. Kusum Dattatraya Kulkarni and
others5 , in that decision it was held as follows:
The binding ratio would be one laid down in Jakati's case (AIR 1959 SC
282) and it cannot be ignored by merely observing that a different
approach in Ganpatrao case holds the field for the High Court as it was
not overruled in Jakati's case. It is thus crystal clear that the pious
obligation of the sons continues to be effective even after partition and if
the creditor in execution of a decree obtained prior to partition seizes the
property in execution without making sons parties to the suit and the
property is sold at an auction and the purchaser is put in possession and
the property thus passes out of the family in execution of the decree on
the father's debt, the remedy of the sons would be to challenge the
character of the debt in an appropriate proceeding brought by them. The
1978 AIR SC 1791
sale cannot be voided on the only ground that the sale of the property
took place after partition and the property sold was one which was
allotted to the sons on partition once the property is liable to be sold for
recovery of debt of the father incurred prior to partition and which is not
tainted with illegality or immorality. Partition in such a situation merely
provides a different mode of enjoyment of property without affecting its
liability for discharge of pre-partition debts.
In the case on hand, as stated supra, the plaintiffs failed to plead
and prove the necessity of partition and also genuineness of Ex.A17
partition deed, though the plaintiffs pleaded that their father is residing at
Vijayawada and they are residing at Nandigama along with their mother,
but the recitals in Ex.A17 clearly goes to show that the plaintiffs, their
mother and their father are residing under one roof at Nandigama only.
Therefore, the alleged partition deed Ex.A17 is brought into existence
collusively by second defendant to screen away the property from the
sale. As stated supra, it is not the case of the plaintiffs that their father
contacted the said debt for immoral or illegal purpose and the said debt is
avyavaharika debt, no single allegation is levelled against the father of
the plaintiffs i.e., second defendant by the plaintiffs either in an
application filed before the executing Court which was returned by the
executing Court.
29. The learned counsel for plaintiffs would contend that the suit
schedule property was sold in auction for a meagre amount of
Rs.3,06,000/- on 11.08.2003. As seen from Ex.A17 partition deed dated
26.07.2001, the value of the plaint schedule property is mentioned as
Rs.1,37,935/- as on 26.07.2001 and on 11.08.2003 the upset price was
fixed by the trial Court as Rs.3,00,000/- and the bid was locked down in
favour of the decree holder. The decree holder participated in the auction
after obtaining permission from the executing Court. Therefore, for the
aforesaid reasons, I am of the considered view that there is no force in
the contention of the plaintiffs that the suit schedule property was sold in
a Court auction for a meager amount of Rs.3,06,000/- therefore, the said
contention is overruled. Furthermore, the debt contacted by the father of
the plaintiffs i.e., second defendant is happened in the year 1992 for an
amount of Rs.1,00,000/-, in those days undoubtedly it is huge amount.
30. Another important aspect is the plaintiffs have not sought the relief
of declaration of title in the plaint schedule property in the case on hand.
They sought the relief of declaration that the sale contacted by the
executing Court is null and void. In the case on hand, though the plaintiffs
have not challenged the attachment order passed under Order XXI Rule
58 C.P.C. which was made absolute in the suit proceedings, the plaintiffs
challenged the attachment order passed in the E.P. proceedings, the said
application was returned for complying objections, without paying a Court
fees thereon, the plaintiffs hurriedly filed the present suit and did not
pursue the same in a prospective manner and did not prosecute the
same. Though they challenged the said finding of the executing Court by
filing C.M.A. No.2411 of 2003, they did not pursue the same and they
withdrawn the same and filed the present suit on 05.01.2004 during the
pendency of the C.M.A which is not sustainable under law and later the
said C.M.A was withdrawn on 28.01.2005.
31. The material on record reveals that the plaintiffs did not choose to
file any application under Order XXI Rule 59 C.P.C. for stay of sale
proceedings before the executing Court, for the reasons best known to
the plaintiffs they have not approached the executing Court under Order
XXI Rule 90 and 92 of Civil Procedure Code to set aside a sale. Though
the plaintiffs availed a remedy under Order XXI Rule 97 of Civil
Procedure Code, they did not prosecute the same, the said application
was returned by taking objections by the executing Court. The fact
remains that an attachment order was passed in the suit proceedings in
the year 1995 i.e., on 18.05.1995 and the same is made absolute on
29.06.2001 and the suit is also decreed on the said date on contest by
both the parties i.e., first defendant and father of the plaintiffs. The
plaintiffs did not choose to challenge the said attachment order before the
executing Court. Though they filed applications by challenging the
attachment order passed in executing Court, the said applications are not
pursued in a prospective manner.
32. The proviso under Order XXI Rule 101 C.P.C deals with the dispute
arose in relation to the adjudication of the proceedings before the
executing Court alone. The law is well settled in a case of Brahmdeo
Chaudhary v. Rishikesh Prasad Jaiswal and another 6. In that decision
it was held as follows:
(2) If for any reason a stranger to the decree is already dispossessed of
the suit property relating to which he claims any right, title or interest
before his getting any opportunity to resist or offer obstruction on the
spot on account of his absence from the place or for any other valid
reason then his remedy would lie in filing an application under Order 21,
Rule 99 CPC claiming that his dispossession was illegal and that
possession deserves to be restored to him. If such an application is
allowed after adjudication then as enjoined by Order 21, Rule 98, sub-
rule (1) CPC the executing court can direct the stranger applicant under
Order 21, Rule 99 to be put in possession of the property or if his
application is found to be substance less, it has to be dismissed. Such
an order passed by the executing court disposing of the application one
1997(3) SCC 694
way or the other under Order 21, Rule 98, sub-rule (1) would be deemed
to be a decree as laid down by Order 21, Rule 103 and would be
appealable before appropriate appellate forum. But no separate suit
would lie against such orders as clearly enjoined by Order 21, Rule 101.
33. In a case of N.S.S.Narayana Sarma and others vs. Goldstone
Exports private Limited and others7, the Apex Court held as follows:
"The position is manifest that when any person claiming title to the
property in his possession obstructing the attempt by the decree-holder
to dispossess him from the said property the executing Court is
competent to consider all questions raised by the persons offering
obstruction against execution of the decree and pass appropriate order
which under the provisions of Order 21 Rule 103 is to be treated as a
decree. From the averments made in the petition filed by the appellants
before the executing Court it is clear that they are claiming independent
right to the property from which they are sought to be evicted in
execution of the decree. It is the further case of the appellants that the
right in the property had vested in them much prior to filing of the present
suit the decree of which is under execution. It is to be kept in mind that
the suit as initially filed was a suit for partition simpliciter. In such a suit
the High Court in course of execution proceedings ordered delivery of
possession. Whether such a direction given in the suit is valid or not is a
separate matter. We need not say anything more on the question at
present. As noted earlier, the learned single Judge and the Division
Bench dismissed the petition filed by the appellants as non-maintainable
without entering into the merits of the case. The Division Bench appears
to have taken the view that since the appellants are claiming the
property through the Paigah Committee or the State Government who
are parties in the suit, they are bound by the decree. The view taken by
the Division Bench is unsustainable and does not at all stand scrutiny
under law. It amounts to, if we may put it that way, begging the question
2002(1) SCC 662
raised in the petition filed by the appellants. At the cost of repetition, it
may be stated here that the appellants are claiming independent title to
the property as the transferees from the pattadars whose land did not
vest in the State Government under the provisions of Andhra Pradesh
(Telangana Area) Abolition of Jagirdar Regulation Act 1958. On a
perusal of the orders passed by the single Judge as well as Division
Bench of the High Court, we are constrained to observe that the said
orders are based on a complete mis-reading of the case of the
appellants and mis-conception of the legal position relevant to the matter.
In the case on hand, the plaintiffs without exhausting their remedy
under Order XXI Rule 101 C.P.C., approached the civil Court. In the case
on hand, Ex.A8 clearly goes to show on 19.11.2003 the Court Amin
delivered the plaint schedule property to the first defendant, at that time
no objections were filed by none of the parties and no resistance was
made.
34. As stated supra, though the plaintiffs are having remedies in
executing Court, they did not invoke the relevant provisions before the
executing Court. The fact remains that they did not challenge the
attachment order passed a way back in the suit proceedings under order
38 Rule 5 C.P.C., which was made absolute prior to the alleged partition
deed, but they simply filed an application before the executing Court by
challenging the attachment order passed in execution proceedings along
with other items, later they did not pursue the same in a prospective
manner and they did not comply the objections raised by the executing
Court and they did not re-submit the same before the executing Court.
35. The law is settled that any third party aggrieved by the executing
proceedings are having remedies for setting aside the sale under Order
XX Rule 90 to 92 before executing Court. The Court below held in its
judgment that the sale is not valid. If the sale is invalid it has to be
challenged by the third party or judgment debtor before the executing
Court alone but not by way of separate suit. As stated supra, though the
plaintiffs have invoked the provisions under order XXI Rule 58 of CPC but
they have not chosen to pursue the same in a prospective manner and
that the said application was returned and a C.M.A was also filed and the
same was withdrawn by the plaintiffs for the reasons best known to them.
Though the plaintiff No.2 filed an application under Order XXI Rule 97
CPC, he has not pursued the same properly. As stated supra, till today
the plaintiffs did not challenge the attachment order passed in the suit
proceedings under Order 38 Rule 5 CPC and which is made absolute on
the date of decreeing the suit much prior to Ex.A17 partition deed. The
details of the partition deed are mentioned in the sale papers and
encumbrance certificate filed by the first defendant. The decree holder i.e.,
first defendant did not suppress the same. The contention of the first
defendant that the said partition deed is not at all genuine one and it is
brought into existence by the plaintiffs' father to defeat the rights of the
creditor i.e., first defendant. As stated supra, no single allegation was
levelled by the plaintiffs against the second defendant either in the plaint
or in Ex.A17 partition deed.
36. The learned counsel for plaintiffs relied on a decision of Orissa
High Court in Miscellaneous Appeal No.310 of 1984. In the case on hand,
the alleged jointness in between the plaintiffs and second defendant is
not pleaded by the plaintiffs either in the plaint or in the alleged partition
deed, there is no whisper in Ex.A17 partition deed about the source of
acquisition of Ex.A17 properties.
37. The learned counsel for plaintiffs relied upon Sarguja Transport
service vs. State Transport Appellate Tribunal and others8, in that
decision it was held as follows:
"In the case of abandonment or withdrawal of a suit without the
permission of the Court to file a fresh suit, there is no prior adjudication
of a suit or an issue is involved, yet the Code provides, as stated earlier,
that a second suit will not lie in sub-rule(4) of Rule 1 of Order XXIII of the
Code when the first suit is withdrawn without the permission referred to
in sub-rule(3) in order to prevent the abuse of the process of the Court"
In the case on hand, the first defendant has not filed any fresh suit
after withdrawing the suit for cancellation of partition deed, the plaintiffs
simply filed a petition before the executing Court and they did not pursue
the same properly and simply withdrawn the Civil Miscellaneous Appeal
and they filed another petition before executing Court without pursuing
the same filed the suit on hand for declaration that the sale is null and
void and later the said Civil Miscellaneous Appeal was withdrawn.
38. The learned counsel for plaintiffs would contend that in E.P.
proceedings the attachment was sought by the first defendant after
partition of the properties under Ex.A17, therefore, the earlier attachment
order dated 18.05.1995 which is made absolute on 29.06.2001 in a suit
proceedings is abandoned. I am unable to accept the said contention of
the plaintiffs that the said attachment was abandoned. The decree holder
sought the attachment of plaint schedule property item along with other
items in the execution proceedings, the plaint schedule property herein is
a third item in the E.P. Schedule property. It does not mean that the
earlier attachment effected on 18.05.1995 which is made absolute prior to
1987 (1) SCC(5)
the partition deed is abandoned without discharging the suit debt and
without raising the said attachment by the Court. In the case on hand, the
attachment order was passed in an application filed under Order 38 Rule
6 of Civil Procedure Code and the said attachment was effected on
18.05.1995 and the suit is decreed on 29.06.2001 and on the same day
the said attachment was made absolute. If it is regarding the immovable
property the meaning and measure of attachment is in accordance with
order XXI Rule 54 of Civil Procedure Code. The attachment will subsists
as long as the decree is satisfied, as long as the execution petition
survives and as long as it is not nullified by virtue of rejection of the claim
of attachment under Order XXI Rule 58 of Civil Procedure Code. The
object of the attachment of the property has to be gathered in the nature
and a form of order of attachment either under Order 38 Rule 5 of C.P.C.
or under Order XXI Rule 50 C.P.C. The judgment debtor will be prohibited
from alienating the property.
39. The leaned counsel for the plaintiffs relied upon Satyendra Kumar
and others vs. Raj Nath Dubey and others9, in that decision it was held
as follows:
Strictly speaking, when the cause of action as well as the subject matter
i.e., the property in issue in the subsequent suit are entirely different, res
judicata is not attracted and the competent Court is therefore not
debarred from trying the subsequent suit which may arise between the
same parties in respect of other properties and upon a different cause of
action. In such a situation, since the Court is not debarred, all issues
including those of facts remain open for adjudication by the competent
Court and the principle which is attracted against the party which has
lost on an important issue of fact in the earlier suit is the principle of
2016(14) SCC 49
estoppel, more particularly "issue estoppel" which flows from principles
of evidence such as from Sections 115, 116 and 117 of the Indian
Evidence Act, 1872 and from principles of equity. As a principle of
evidence, estoppel is treated to be an admission or in the eyes of law
something equivalent to an admission of such quality and nature that the
maker is not allowed to contradict it. In other words it works as an
impediment or bar to a right of action due to affected person's conduct or
action. "Estoppel by judgment" is taken as a bar which precludes the
parties after final judgment to reagitate and relitigate the same cause of
action or ground of defence or any fact determined by the judgment. If
the determination was by a Court of competent jurisdiction, the bar will
remain operative even if the judgment is perceived to be erroneous. If
the parties fail to get rid of an erroneous judgment, they as well as
persons claiming through them must remain bound by it.
In the case on hand, the first defendant has not filed any separate
suit for the same cause of action after withdrawing the cancellation of suit
for partition.
40. The learned counsel for plaintiffs would contend that the appellant
has withdrawn O.S.No.1 of 2002 which was filed by challenging the
partition and withdrawn the same and now he cannot agitate the same
that the said partition is null and void. The fact remains the appellant filed
a suit along with other creditors of second defendant. The plaintiffs filed
the present suit to challenge the sale conducted by the Senior Civil
Judge's Court, Nandigama, since the plaintiffs filed the present suit to
challenge the sale, the first defendant herein withdrawn the suit O.S.No.1
of 2002. Admittedly, no findings or no observations were made by the civil
Court and it was simply dismissed as withdrawn. As such there is no
force in the contention raised by the learned counsel for plaintiffs that the
appellant did not deny the partition deed.
41. In the case on hand the plaintiffs are challenging the sale held by
the executing Court on the ground that the plaintiffs are having right in
E.P. schedule property in an extent of Ac.5.63 cents and relied on Ex.A17
partition deed. The plaintiffs pleaded that their father is residing
separately at Vijayawada and they are residing at Nandigama with their
mother but Ex.A17 alleged partition deed falsifies the said contention of
the plaintiffs that their father is residing at Vijayawada. Ex.A17 alleged
partition deed goes to show that the plaintiffs and their father i.e., second
defendant are residing together under one roof. There is no whisper
about the intention of the partition of the properties though the plaintiffs
are minors by the date of partition deed. There is no whisper or it was not
pleaded by the plaintiffs that their father is addicted to bad vices and
wasting the joint family property for illegal activities being kartha of the
family. The fact remains the first defendant filed a suit before the Senior
Civil Judge's Court, Vijayawada in the year 1995 for recovery of amount
and the attachment was also affected on 18.05.1995 and the said suit
was subsequently transferred to Senior Civil Judge's Court, Nandigama
and the said attachment was made absolute on 29.06.2001 and decree
was also passed on the said date on contest by both the parties. After
passing a decree immediately within a month, on 26.07.2001, the said
partition deed was brought into existence by allotting a nominal share of
Ac.0.50 cents to the father and major extent of Ac.5.63 cents to the
plaintiffs, it is nothing but inequal partition and to defeat the rights of the
creditor i.e., first defendant herein, the second defendant herein brought
into existence of alleged partition deed. Admittedly the need of partition of
the properties is not stated either in the alleged partition deed or in the
plaint. Therefore, the said partition deed is not binding on the appellant.
No single allegation is levelled against the second defendant either in the
plaint or in Ex.A17 partition deed. Furthermore, it is not the case of the
plaintiffs that for illegal and immoral activities the debt was borrowed by
their father i.e., second defendant, therefore the plaintiffs are liable to
discharge the suit debt under the theory of pious obligations.
42. For the aforesaid reasons, the plaintiffs are not entitled the relief of
declaration that the sale held by the Senior Civil Judge's Court,
Nandigama in E.P.No.39 of 2001 in O.S.No.56 of 1999 is null and void
and the trial Court without appreciating the evidence in a correct and
prospective manner, wrongly came to conclusion that the sale is invalid,
therefore, the said finding of the trial Court is liable to be set aside, since
the sale is valid, the plaintiffs are not entitled recovery of possession.
Since the sale conducted by the executing Court is valid, the plaintiffs are
not entitled damages, which was negatived by the trial Court. Accordingly,
the point Nos.1 to 3 are answered.
43. In the result, this appeal is allowed, consequently the suit in
O.S.No.7 of 2004 on the file of Senior Civil Judge's Court, Nandigama is
dismissed without costs.
In the result, Cross objections (SR) No.19011 of 2005 is dismissed.
Considering the circumstances of the case, each party do bear their own
costs in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal
shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 19.06.2024
sj
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.538 OF 2005 &
CROSS OBJECTIONS (SR) No.19011 OF 2005 IN
APPEAL SUIT No.538 OF 2005
Date: 19.06.2024
sj
