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2001 DIGILAW 1482 (AP)

Velamuri Venkat Parvathi v. Kothuri Kishore Babu

2001-11-19

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD Sri V. S. R. Anjaneyulu, Sri D. Krishna Murthy and sri Ravi Shankar, the learned Counsel representing the respective parties. ( 2 ) CRP No. 866/2001 is filed as against an order in E. A. No. 312/2000 in e. P. No. 104/2000 in O. S. No. 87/66 on the file of Principal Senior Civil Judge, narsaraopet. Likewise, CRP No. 916/2001 is filed as against an order in E. A. No. 313/ 2000. CRP No 1355/2001 is filed as against an order in E. A. No. 265/2000 and CRP no. 1584/2001 is filed as against an order in e. A. No. 266/2000 in E. P. No. 104/2000 in o. S. No. 87/66 on the file of Principal Senior civil Judge, Narsaraopet. ( 3 ) IN all these applications, the learned principal Senior Civil Judge, Narsaraopet had passed a common order dated 13-12-2000 and aggrieved by the same, these revisions had been preferred. ( 4 ) THE case of respondents 1 and 2 in crp No. 1355 of 2001 is that they purchased the disputed property under an agreement of sale dated 16-4-2000 from Venkata Parvathi, pavan Kumar and Venkata Durga Murali krishna for a consideration of Rs. 6 lakhs and they paid Rs. 3 lakhs and had further agreed to pay the balance of sale consideration by the end of June, 2000 and venkata Parvathi and Pavan Kumar representing the other legal heirs promised to see that regular sale deed will be executed on their behalf also at the time of registration of the properties and it is also their case that they had received Rs. 2 lakhs on 10-5-2000 and Rs. 1 lakh on 18-6-2000 and had endorsed the same on the aforesaid agreement of sale and on 28-6-2000 some of the judgment-debtors approached them having knowledge of the same and requested them to let out the property on lease of rs. 2 lakhs on 10-5-2000 and Rs. 1 lakh on 18-6-2000 and had endorsed the same on the aforesaid agreement of sale and on 28-6-2000 some of the judgment-debtors approached them having knowledge of the same and requested them to let out the property on lease of rs. 1,100/- per month and they had received rs 20,000/- as advance and entered into a lease agreement and the said agreement was executed by Kishore Babu, one of the judgment-debtors, which was for a period of 10 years and they had received rents also for the months of July to September, 2000 and further they filed O. S. No. 302/2000 on the file of District Court, Guntur against the revision petitioners for specific performance of the contract of agreement of sale and temporary injunction restraining them from alienating the properties to third parties also had been granted. In view of the aforesaid facts they are not entitled to claim possession of the property and they are not entitled to execute the decree so as to dispossess them from the disputed property. ( 5 ) THE stand taken by the revision petitioners in a detailed counter filed is that e. A. No. 265/2000 filed under Section 47 of the Code of Civil Procedure itself is not maintainable and the petitioners in the said application i. e. , 1st and 2nd respondents in crp No. 1355/2001 have no locus standi at all and the documents relied upon are forged and the alleged contract of sale is compulsorily registerable and hence such unregistered document is invalid and inadmissible and the lease agreement also is a collusive one and also an invalid document for want of registration. It was also specifically stated that they are entitled for possession of the properties including item no. 3 of the schedule property of Ex. A1 in os No. 87/66 by virtue of judgment and decree of the Honourable Supreme Court of india. It was also further specifically stated that the suit for specific performance was filed on the strength of the forged document and they have also filed IA No. 1399/2000 requesting the Court to grant temporary injunction restraining them from in any way interfering with the alleged possession and enjoyment of the schedule property pending disposal of the said suit. It was also further specifically stated that the suit for specific performance was filed on the strength of the forged document and they have also filed IA No. 1399/2000 requesting the Court to grant temporary injunction restraining them from in any way interfering with the alleged possession and enjoyment of the schedule property pending disposal of the said suit. It was also further stated that the said respondents 1 and 2 had conspired with Kothuri Kishore Babu and had brought into existence the lease agreement with a view to support the contract of sale and hence they are entitled for the relief of delivery of possession of the schedule property. The Court below while making a common order had framed the following points for determination:1. Whether the petitioners are entitled for stay of A1l further proceedings in e. P. 104/2000? 2. Whether the E. A. 265/2000 can be reopened ? 3. Whether the origina1 agreement of sa1e dated 16-4-2000 has to be sent for? 4. Whether the delivery warrant can be reca1led ?the question that was seriously argued before the Court below and decided was whether respondents 1 and 2 in the present revisions are entitled for stay of A1l further proceedings in E. P. No, 104/2000. The Court below at paragraphs 19 to 26 had discussed A1l the aspects in detail and had ultimately made the following order: -"aceordingly ordered to stay A1l further proceedings in E. P. 104/2000 in respect of item No. 3 of Sch. III in Ex. A1 in O. S. 87/66 till the disposa1 of E. A. 264/2000. Further ordered reca1ling the warrant of delivery in respect of the item No. 3 Sch. III of Ex. A1 in O. S. 87/66 in E. P. 104/2000. In the result E. A. 265/2000 and E. A. 266/2000 in E. P. 104/2000 in O. S. 87/66 are A1lowed, but in the circumstances without costs. E. A. 337/2000 in E. A. 265/2000 in E. P. 104/ 2000 in O. S. 87/66 is dismissed without costs. E. A. 366/2000 in E. A. 265/2000 in E. P. 104/ 2000 in OS87/66 is dismissed for the time being without costs. " ( 6 ) SRI. E. A. 337/2000 in E. A. 265/2000 in E. P. 104/ 2000 in O. S. 87/66 is dismissed without costs. E. A. 366/2000 in E. A. 265/2000 in E. P. 104/ 2000 in OS87/66 is dismissed for the time being without costs. " ( 6 ) SRI. V. S. R. Anjaneyulu, the learned counsel representing the revision petitioners had mainly contended that the application under Section 47 of the Code of Civil procedure itself is not maintainable and hence the Court below had tota1ly erred in granting stay of A1l proceedings in e. P. No. 104/2000. The learned Counsel A1so had incidenta1ly contended about the other orders made in the connected execution applications. The learned Counsel A1so had submitted that when the very application under Section 47 CPC is not maintainable, the Court below had tota1ly erred in granting stay of further proceedings under Section 151 CPC. The learned Counsel A1so had pointed out that under Order 21 CPC in the case of execution specific provisions relating to stay have been incorporated in the Code of Civil Procedure-Rules 26, 29, 59, and hence it should be taken that the Legislature in its wisdom had not specified such power of granting stay as far as Section 47 CPC application is concerned. The learned counsel A1so had submitted that Section 47 cpc cannot be invoked so as to circumvent order 21, Rules 1 and 2 CPC and the objections raised are hopelessly barred by limitation. The learned Counsel A1so had placed reliance on K. P. Naik v. G. N. Umaarji, air 1976 Karn. 162, Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006 , and a1so Shri Chandrika Singh and others v. Raja Vishwanath Pratap Singh and another, air 1992 SC 1318 . The learned Counsel a1so submitted that inasmuch as the rights of the revision petitioners are vita1ly affected, these revisions are maintainable and granting stay in such circumstances definitely is a case decided within the meaning of Section 115 of the Code of Civil Procedure. The learned Counsel had further submitted that inasmuch as a suit was A1ready instituted, the remedy if any should be worked out in the suit only and not be way of an application under Section 47 CPC. At any rate, it cannot be said that there is prima facie case since a mere agreement holder has no right to resist the execution. At any rate, it cannot be said that there is prima facie case since a mere agreement holder has no right to resist the execution. Inasmuch as at the best they are entitled to take this defence under Section 53-A of Transfer of Property act and not to enforce any right as such, as petitioners by filing a petition under section 47 CPC. ( 7 ) SRI D. Krishna Murthy, on the other hand had strenuously contended that these revisions are of discretionary interlocutory orders and the main matter under Section 47 cpc is pending and the merits and the demerits of the main matter cannot be decided at this stage and granting stay at any rate is not a case decided within the meaning of Section 115 CPC and hence these revisions are not maintainable. The learned Counsel placed reliance on Baldevdas v. Filmistan Distributors, AIR 1970 SC 406 . The learned Counsel also had contended that under Section 151 CPC the executing court while entertaining a petition under section 47 CPC has power to grant stay of proceedings A1so and Section 47 CPC is an independent provision not fa1ling under order 21 CPC dea1ing with execution as such. The learned Counsel had further contended that no doubt a comprehensive suit for specific performance A1so is pending, but that by itself will not be a bar in maintaining a petition under Section 47 CPC when there is threat of dispossession on the execution side. The learned Counsel A1so had submitted that A1l the aspects which had been argued by the other Counsel elaborately are A1l matters touching the merits of the main petition under Section 47 CPC which cannot be dea1t with in detail at this stage and in case the stay is vacated at this point of time, virtua1ly the main matter itself will become infructuous. ( 8 ) SRI Ravi Shankar Jandhya1a a1so had by and large had supported the contentions of Sri D. Krishna Murthy. ( 9 ) THE factua1 details need not be repeated again. ( 8 ) SRI Ravi Shankar Jandhya1a a1so had by and large had supported the contentions of Sri D. Krishna Murthy. ( 9 ) THE factua1 details need not be repeated again. It is no doubt true that from the facts it appear that the matter is a seriously contested one, but however it is a case where the Court below had entertained the main petition under Section 47 CPC and had discussed in detail different aspects involved in the matter and had arrived at a conclusion that stay of further proceedings should be granted pending disposa1 of the main petition under Section 47 CPC. No doubt, certain ancillary and incidenta1 orders a1so had been made by the same common order. Now the question is whether such order deserves to be interfered with under section 115 of the Code of Civil Procedure. Section 115 CPC dea1ing with revision reads as follows:- revision : (1) The High Court may ca1l for the record of any case which has been decided by any Court subordinate to such high Court and in which no appea1 lies thereto, and if such subordinate Court appears, (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction lega1ly or with materia1 irregularity, the High Court may make such order in the case as it thinks fit: provided that the High Court sha1l not, under this section, vary or reverse and order made, or any order deciding an issue, in the course of a suit or other proceedings, except where (a) The order, if it had been made in favour of the party applying for revision, would have fina1ly disposed of the suit or other proceeding, or (b) The order, if A1lowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court sha1l not, under this section, vary or reverse any decree or order against which an appea1 lies either to the high Court or to any Court subordinate thereto. Explanation :in this section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of, a suit or other proceeding. Explanation :in this section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of, a suit or other proceeding. In the decision referred (supra), the Apex court while dea1ing with the expression case decided observed as follows: "the expression "case" is not limited in its import to the entirety of the matter in dispute in an action. The expression case is a word of comprehensive import; it includes a civil proceedings and is not restricted by anything contained in Section 115 of the code to the entirety of the proceeding in a civil Court. To interpret the expression case as an entire proceeding only and not a part of the proceeding imposes an unwanted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But every order of the Court in the course of a suit does not amount to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right of obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115. By overruling an objection to a question put to a witness and a1lowing the question to be put, no case is decided. In Major S. S. Khanna v. Brig. F. J. Dillon, air 1964 SC 497 = 1964 (4) SCR 409 , it was held that the expression case is a word of comprehensive import: it includes a civil proceeding and is not restricted by anything contained in Section 115 of the code to the entirety of the proceeding in a civil Court. ( 10 ) HERE is a case where the parties had fought serious litigation and a long drawn litigation too and no doubt now the third parties claiming to be the agreement holders have been raising certain objections. Virtua1ly by an order made by the Court below, the decree holders who are entitled to further rea1ise the fruits of the decree are prevented from doing so. It is A1so pertinent to note that serious A1legations are made in the counter that the documents are either forged or collusive documents. Virtua1ly by an order made by the Court below, the decree holders who are entitled to further rea1ise the fruits of the decree are prevented from doing so. It is A1so pertinent to note that serious A1legations are made in the counter that the documents are either forged or collusive documents. While orders are passed in such matters, simply it cannot be contended that these are A1l orders of interlocutory nature and are orders of discretionary nature and hence such orders will not fa1l under the case decided and hence revisions are not maintainable. In my considered opinion, such contentions cannot be accepted and I am of the view that in matters of this nature A1so since the rights of the parties will be definitely affected, such aggrieved parties are entitled to maintain Revisions under Section 115 cpc. ( 11 ) IT is no doubt true that respondents 1 and 2 are contesting the litigation as agreement holders only. But however, the court below had entertained the main petition under Section 47 CPC. Several aspects relating to the maintainability of the main petition had been canvassed by the learned Counsel for the revision petitioners placing reliance on the decisions referred (supra ). A1l the aspects of circumventing and by-passing Order 21, Rules 1 and 2 cpc and invoking Section 47 CPC and the question of limitation and A1so the nature of documents relied upon by the parties are A1l matters yet to be decided while deciding the main petition under Section 47 CPC and the merits and the demerits at the best can be gone into only to see whether prima facie case is made out for granting an order of stay. However, the Court below had exercised the discretion and granted such an order. Merely because certain specific provisions are made for granting stay under order 21 CPC and such provision is not provided for as far as Section 47 CPC is concerned, it cannot be said that the Court is powerless to grant stay of proceedings under section 151 CPC since it is not a case of any conflicting provisions or Section 151 cpc overriding as against the specific provisions or specific power imposed otherwise under other provisions of the Code of Civil Procedure. Hence, I cannot accept the contention of the learned Counsel for the revision petitioners that in a petition under Section 47 CPC on an application filed under Section 151 CPC stay cannot be granted. It is one thing to say that the court has no power at A1l and it is another thing to say that the Court had not exercised the power judiciously and in proper perspective. ( 12 ) IN view of the foregoing discussion, i am of the considered opinion that A1l the questions whether respondents 1 and 2 are the representatives in interest who can claim a right to file a petition under section 47 CPC, the question of limitation, circumventing of the provisions of Order 21, rules 1 and 2 CPC and A1so the nature of documents, are all questions which may have to be decided by the Court below after recording evidence if necessary which may be let in by the respective parties and those aspects cannot be decided at this stage. It is no doubt true that since it is a long drawn litigation, the main matter itself has to be decided by the Court below at the earliest point of time. ( 13 ) HENCE, I am of the considered opinion that these revisions are devoid of merit and accordingly the revisions are dismissed. But however no order as to costs. In view of the fact that it has been a long drawn litigation, in the interest of justice I do feel that there shall be a direction to the Court below to dispose of these matters within a period of four months from the date of communication of this order.