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2001 DIGILAW 1565 (AP)

Mothika Mutyalu v. P. Venkata Krishna Divakar

2001-11-30

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THESE revisions are filed against the orders allowing the applications filed under Section 47 of the Code of Civil procedure, hereinafter in short referred to as "code" for the purpose of convenience, declaring that the decree-holders are not entitled to recover the respective petition schedule properties and the petitioners therein, arrayed as 1st respondent in all these civil revision petitions, are the title holders of the respective petition schedule properties. The third-party objectors to the e. P. proceedings had filed execution applications in EPNo. 146/91 in OS No. 161/ 61 on the file of I Additional Senior Civil judge, Vijayawada under Section 47 of the code. As already stated supra, these third party objectors are the purchasers under different registered sale deeds and their case is that from the respective dates of purchase they have been in possession and enjoyment of the respective properties. It is the case of the objectors - the contesting respondents in all these civil revision petitions, that the properties purchased by them originally were part of Acs. 11-00 of land in D. No. 81 of Bhavanipuram and was owned by one Mothika Mutyalu, who is the great grandfather of respondents 1 and 2 shown in the execution applications, who are the revision petitioners in the present civil revision petitions. The said land was sold by the grandfather and father of "the revision petitioners-respondents 1 and 2, under a registered sale deed dated 25. 8. 1946 to one Koganti Nagabushanam, who is the father of the 3rd respondent shown in the execution applications one Ravi Anjamma @ Anjana Devi, shown as 2nd respondent in the present CRP Nos. 581 to 590, 632,633 of 2001 and shown as 3rd respondent in crp Nos. 631 and 634 of 2001. After the death of the said Nagabushanam, as the legal heirs, the said Ravi Anjamma @ anjana Devi and her mother sold the said acs. 11 -00 of land to Potluri Satyanarayana, venkateswararao, Venkatanarayana, seetaramaswamy under separate registered sale deeds dated 15. 7. 1967 and after the purchase they were in possession and enjoyment of the same and in the years 1979 and 1980, the said persons had sold away the land to several purchasers and likewise by virtue of different sales, the present purchasers-objectors have been in possession and enjoyment of the respective properties. 7. 1967 and after the purchase they were in possession and enjoyment of the same and in the years 1979 and 1980, the said persons had sold away the land to several purchasers and likewise by virtue of different sales, the present purchasers-objectors have been in possession and enjoyment of the respective properties. While the things stand thus, the revision petitioners herein, along with Amin came to the schedule mentioned properties for delivery of possession of 95 cents, including the properties described in the schedules and then only the applicants who filed these applications under Section 47 of the Code came to know about the decree and on enquiry it was brought to their notice that the sale in favour of Koganti nagabushanam by the father and grand-father of the revision petitioners was upheld and a partition was ordered for the remaining extent as shown in the plaint schedule in o. S. No. 161/61 and hence the alienees of the heirs of Koganti Nagabushanam i. e. , the objectors-applicants who filed applications under Section 47 of the Code and other objectors also, are not liable for any claim of the revision petitioners in view of the judgment and decree in AS No. 340/66 as confirmed in LPA No. 99/72 on the file of honourable High Court of A. P. It is also the case of the objectors that the land purchased by Koganti Nagabushanam was within definite boundaries and there is no ambiguity or any doubt about the identity of the property and the boundaries had been specifically given even in the sale deed dated 21-8-1946. It was also stated that these objectors-applicants who filed the applicants under Section 47 of the Code, had learnt that a Commissioner was appointed in IA No. 3455/87 to effect partition totally ignoring the sale deed dated 21-8-1946 in favour of Nagabushanam and there can be no execution contrary to the decree made in AS No. 340/66 and in the light of the facts and circumstances, the objectors-applicants filed the respective applications under Section 47 of the code. ( 2 ) THE 1st revision petitioner- 1st respondent had filed a detailed counter-affidavit denying all the averments questioning the very locus slandi of these alleged purchasers in raising such objections. ( 2 ) THE 1st revision petitioner- 1st respondent had filed a detailed counter-affidavit denying all the averments questioning the very locus slandi of these alleged purchasers in raising such objections. The 1st revision petitioner had taken a stand stating that the decree-holders filed a suit in OS No,161/61 for partition of the plaint schedule properties and though the suit was dismissed by the Court of first instance, an appeal AS No. 340/66 was allowed by the Honourable High Court of A. P. on 1-4-1970 by granting of decree for partition of Acs. 3-52 cents into six equal shares and ordering delivery of l/3rd share to the 1st respondent- 2nd plaintiff therein, and thereafter they filed IA No. 3555/81 for passing of a final decree in terms of the aforesaid decree and a Commissioner was appointed and the commissioner with the help of a Surveyor, prepared a plan and submitted a report and a joint memo also was filed by both the parties and a final decree was passed on 11-4-1991. Then they filed EP No. 146/9l to execute the said final decree praying the relief of putting them in possession of the property allotted to them by evicting the judgment debtors. It was also averred that the applicants who filed these applications under Section 47 of the Code have no right to question the final decree and the report of the Commissioner is in conformity with the decree made by the Honourable high Court of A. P. and it was also specifically denied that they are proceeding with the execution in respect of the very property which was sold to the 3rd defendant and later upheld by the Supreme Court. It was also stated that the executing Court cannot adjudicate the nature of dispute raised by the objectors-applicants in these applications filed under Section 47 of the code. ( 3 ) THE Court below had framed the following point for consideration: "whether the petitioner is entitled for the declaration as prayed?" and after discussing the respective contentions, ultimately had allowed the applications filed by the objectors applicants under Section 47 of the Code. It is pertinent to note that no evidence had been recorded in all these matters. Aggrieved by the orders made in these batch applications filed by the objectors-applicants under Section 47 of the Code, respondents 1 and 2 had preferred these civil revision petitions. It is pertinent to note that no evidence had been recorded in all these matters. Aggrieved by the orders made in these batch applications filed by the objectors-applicants under Section 47 of the Code, respondents 1 and 2 had preferred these civil revision petitions. ( 4 ) SRI A. T. M. Rangaramanujam, the learned senior Counsel representing Sri M. N. Srinivasan and Sri 7! Ravi Kumar, Counsel on record had submitted that the Court below had totally erred in allowing the application under Section 47 of the Code without even recording evidence when there are several disputed questions of fact. The learned Counsel had taken me through the report of the Commissioner and had commented that the Commissioner had not discharged his duties properly, which learned Commissioner is expected to do under law. The learned Counsel also had pointed out that the identity of the property is not established and the Commissioner being an officer of the Court discharging the functions under the delegation of the functions of the Court, the learned commissioner should have taken care to take all steps to locate the property instead of making certain vague observations in this regard. The learned Counsel had taken me through the joint memo and also the final decree proceedings. The learned Counsel also had raised an objection saying that section 47 of the Code is not applicable at all and the remedy is a misconceived remedy. The learned Counsel had placed reliance on Kassim Beevi v. Meeranchi mytheen Beevi and others, AIR 1987 ker. 226 and also Dr. Madhukar Trimbak gore v. Vasant Ramkrishna Kolhatkar, air 1983 Bom. 277 . ( 5 ) SRI V. S. R. Anjaneyulu, the learned counsel representing the contesting respondents had vehemently contended that the objectors who filed the applications as purchasers under Section 47 of the Code have nothing to do with the joint memo and from the judgments in AS No. 340/66 and lpa No. 99/72, it is very clear that these properties are not and cannot be taken as the subject-matter covered by the final decree proceedings and hence since it is in execution discharging satisfaction of the decree, the purchasers as objectors had rightly invoked Section 47 of the Code and the said applications were allowed by the Court below after appreciating all the facts and circumstances of the case. The learned Counsel in fact had taken me through the report of the Commissioner and also the evidence recorded in the judgments in both AS No. 340/66 and also LPA No. 99/ 72 and also the final decree, which was passed and all other relevant documents. The learned Counsel also had contended that the transaction with Nagabmhanam was in fact upheld even by the Honourable High court and hence there is no question of reagitating the same in these proceedings. The learned Counsel had no doubt pointed out several aspects, which go to show that the very identity of the property is totally a different one and not one covered by the final decree proceedings. Sri Raghuram, the learned Counsel representing certain of the parties also had explained all the events and had contended that the impugned orders questioned in the revisions are sustainable in law. ( 6 ) HEARD the Counsel on record and also perused the material available on record. ( 7 ) IN Dhurandhar Prasad Singh v. Jai Prakash University and others, AIR 2001 sc 2552 , while dealing with the powers of the executing Court under Section 47 of the code, it was held that the exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. No doubt, an attempt was made by the learned senior Counsel to show that the remedy of the objectors is either under order 23, Rule 97 or Order 21, Rule 98 of the Code and not under Section 47 of the code and had made an attempt to explain that the general provision under Section 47 of the Code has to yield to such specific provisions. Apart from this aspect of the matter, as can be seen from the material available on record, for the reasons bet known, no evidence was recorded though serious disputed questions relating to facts, including identity of the property, had been agitated by the parties. If the final decree proceedings and the report of the commissioner and also the judgments delivered in the prior proceedings, are taken into consideration, the Court has to necessarily come to an irresistible conclusion that the very identity of the property is in dispute and the same has to be located. If the final decree proceedings and the report of the commissioner and also the judgments delivered in the prior proceedings, are taken into consideration, the Court has to necessarily come to an irresistible conclusion that the very identity of the property is in dispute and the same has to be located. The question whether these objectors are the representatives within the meaning of section 47 of the Code or not and whether the applications filed under Section 47 of the Code are maintainable in the facts and circumstances of the case, are all matters which are to be gone into. Apart from this aspect of the matter, since the very identity of the property has to be located and the findings recorded in this regard are vague and also the observations made by the Commissioner in his report also create serious doubt about the same, in the light of the facts and circumstances of the case, I am of the considered opinion that unless proper procedure is followed by the Commissioner to locate the property with the help and assistance of the persons concerned with the same and unless the parties are permitted to adduce necessary evidence to establish their respective claims, proper and just orders cannot be made in a dispute of this nature. Hence, for the reasons recorded above, I am inclined to set aside the impugned orders made in the applications filed by the objectors- applicants in the Court below with a view to give opportunity to both the parties to let in evidence and also establish their respective claims relating to the disputed property. ( 8 ) FOR the foregoing reasons, the civil revision petitions are allowed to the extent indicated above and the matters are remitted back to the Court below for the purpose stated supra. However, in view of the peculiar facts and circumstances of the case, no order as to costs.