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2002 DIGILAW 1260 (AP)

Jasti Vijayalakshmi v. Uppalapati sunila

2002-10-28

GOPALA KRISHNA TAMADA

body2002
GOPALA KRISHNA TAMADA, J. ( 1 ) IN this petition under section 24 of Code of Civil Procedure, the petitioners seek transfer of EA No. 207 of 2002 in E. P. No. 15 of 2002 in O. S. No. 659 of 1996 on the file of the III Additional senior Civil Judge, Vijayawada to the Court of the II Additional District Judge, vijayawada to be clubbed and tried along with O. S. No. 15 of 2002. ( 2 ) THE facts that led to the filing of the transfer petition are that the 3rd respondent herein i. e. , defendant in O. S. No. 15 of 2002 executed an agreement of sale dated 20. 2. 1993 in favour of the petitioners herein and in pursuance thereof, the petitioners gave Rs. 6. 00 lakhs in two instalments, at the rate of Rs. 3. 00 lakhs each, and the balance was only Rs. 4. 00 lakhs and they were prepared to pay the said amount also. Inspite of their readiness to pay the balance amount, the 3rd respondent was not executing a registered sale deed, as a result of which, the petitioners were constrained to file O. S. No. 15 of 2002 and the same is pending on the file of the ii Additional District Judge, Vijayawada. During the pendency of the suit proceedings, it came to light, according to the petitioners herein, that the first respondent herein filed O. S. No. 659 of 1996 against the 3rd respondent herein basing on a promissory note dated 12. 1. 1992 and the same was decreed on 22. 11. 1999 and in execution thereof, the first respondent filed EP No. 160 of 2000 and the suit schedule property was attached and subsequently, in a Court auction, the same was purchased by the 2nd respondent, who is none other than the mother of the first respondent. At that juncture, in view of the developments, the petitioners herein were constrained to file e. A. No. 321 of 2002 and the same is pending. Subsequently, for administrative convenience, the said EA and EP were transferred to the court of III Additional Senior Civil Judge and renumbered as EA. No. 207 of 2002 in e. P. No. 15 of 2002 in O. S. No. 659 of 1996 and thus, the matter is pending before the iii Additional Senior Civil Judge, Vijayawada. Subsequently, for administrative convenience, the said EA and EP were transferred to the court of III Additional Senior Civil Judge and renumbered as EA. No. 207 of 2002 in e. P. No. 15 of 2002 in O. S. No. 659 of 1996 and thus, the matter is pending before the iii Additional Senior Civil Judge, Vijayawada. ( 3 ) NOW, the contention of the learned counsel for the petitioners is that when their suit for specific performance of agreement of Sale is pending, if the decree in O. S. No. 659 of 1996 is executed, the very purpose of EA. No. 207 of 2002 gets frustrated and further to avoid multiplicity of proceedings, the same may be transferred to the II Additional District Judge, vijayawada, where O. S. No. 15 of 2002 is pending, so that the Court below after the oral and documentary evidence, that is going to be let-in in O. S. No. 15 of 2002 and also in EA No. 207 of 2002, can pass a just and equitable order, and, hence, they seek transfer of the said petition. ( 4 ) THE learned Counsel for the first respondent, Mr. V. R. Avula, strongly opposes the said submission stating that the very agreement of Sale alleged to have been executed by the 3rd respondent in favour of the petitioners herein is doubtful as the petitioners had approached the Court after a period of nine years and filed the present suit which was numbered as O. S. No. 15 of 2002 and his second submission is that the suit filed by the first respondent i. e. , o. S. No. 659 of 1996 has now reached its finality as sale has taken place. The 2nd respondent who was the auction purchaser has deposited the entire amount pursuant to the said auction and if EA. No. 207 of 2002 filed by the petitioners in the said execution proceedings is transferred to be clubbed with o. S. No. 15 of 2002, which is of recent origin, it takes some more time for the suit to be disposed of and causes lot of hardship to the respondents 1 and 2 and as such, there is no need for the matter to be transferred to the II Additional District Judge to be tried along with O. S. No. 15 of 2002. ( 5 ) MAY be, it is a fact that the agreement of Sale basing on which the present suit is filed by the petitioners herein was dated 20. 2. 1993. But, it cannot be said that merely because the petitioners have approached the Court at a very belated stage, the genuinity of the agreement itself has to be doubted. Ultimately, it is for the court below to come to just conclusion after going through the oral and documentary evidence. That apart, it is not for this Court to go into the genuineness or otherwise of the document at this juncture. So far as the second submission of the learned Counsel for the first respondent is concerned, there is some force in his submission that o. S. No. 659 of 1996 has reached its finality and at the stage when the EP is to be terminated, the present EA No. 207 of 2002 is filed and if the said EA is transferred to be posted along with O. S. No. 15 of 2002, definitely, it takes some more time. But, it does not mean that on that ground, the matter need not be transferred. The suit instituted by the petitioners herein is for specific performance of an Agreement of sale of the plaint schedule property, which was attached in E. P. No. 15 of 2002 and in an auction conducted by the Court, the 2nd respondent purchased the same. If ultimately, the suit filed by the petitioner in O. S. No. 15 of 2002 is decreed in favour of the petitioners and the E. P. is allowed to be closed, the very purpose of O. S. No. 15 of 2002 gets frustrated and the only remedy available for them is to realise the amounts already paid by them and may be, also to claim damages. ( 6 ) OS No. 659 of 1996 is a suit for recovery of money basing on a promissory note and because the 3rd respondent did not pay the amount inspite of there being a decree and judgment, the first respondent was constrained to file E. P. and in the said e. P. , the suit schedule property of O. S. No. 15 of 2002 was attached and subsequently was sold in a Court auction. The first respondent never wanted the suit schedule property, but, in fact, he wanted to have his money realized basing on a promissory note dated 12. 1. 1992. Further, if O. S. No. 15 of 2002 filed by the petitioners herein is decreed and the balance amount is paid by the petitioners to the 3rd respondent, the same can be adjusted towards balance decretal amount in E. P. No. 160/2000, renumbered as E. P. No. 15 of 2002. Hence, viewed from any angle, I think, it is a fit case where EA no. 207 of 2002 in EP No. 15/2002 in o. S. No. 659/1996 is to be transferred to the court of II Additional District, Judge, vijayawada to be tried along with O. S. No. 15 of 2002. Accordingly, this transfer petition is allowed and EA. No. 207 of 2002 in ej. No. 15 of 2002 in O. S. No. 659 of 1996 is withdrawn from the Court of II Additional senior Civil Judge, Vijayawada and transferred to the Court of II Additional district Judge, Vijayawada to be clubbed and tried along with O. S. No. 15 of 2002 pending on its file. ( 7 ) HOWEVER, in view of the fact that os No. 659 of 1996 was decreed and EP has reached its finality, I feel it expedient to direct the II Additional District Judge, vijayawada to give utmost priority to the suit in OS No. 15 of 2002 and the present matter i. e. , EA No. 207 of 2002 in EP No. 15 of 2002 in OS No. 659 of 1996, which is now transferred and disposed of both the matters as expeditiously as possible, preferably, within a period of six months from the date of the receipt of the copy of this order.