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2004 DIGILAW 1137 (AP)

Kotamreddy Balarami Reddy v. Kondandaramaswamy Temple, Buchireddypalem, Nellore

2004-10-04

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE judgment-debtor in O. S. No. 19 of 1982, on the file of the senior Civil Judge, Kovur, filed this C. M. A. , aggrieved by the rejection of an application filed under Rule 90 of Order 21 C. P. C. ( 2 ) O. S. No. 19 of 1982 was filed by the 1st respondent, Sri Kodandaramaswamy temple, Buchireddypalem, against the appellant, in the Court of Subordinate Judge, kavali, Nellore District. Initially, it was represented by the hereditary Dharmakartha, by name, Dodla Padnuranga Reddy. The suit was decreed and the decree became final. In the meanwhile, the Court of Subordinate Judge, Kovur, was formed and the subject-matter of the decree came within the jurisdiction of that Court. Therefore, the E. P. No. 13 of 1995 was filed in that Court. In the course of execution, an item of immovable property belonging to the appellant was brought to sale. He filed E. A. No. 215 of 1999, to set aside the sale. Through its order dated 21-12-2000, the Executing Court rejected the E. A. ( 3 ) SRI N. Chandradhar Rao, learned counsel for the appellant submits that there are material irregularities in the execution proceedings, including the one arising out of change of law, in relation to administration and management of temples. He submits that the proceedings initiated by hereditary trustee cannot be maintained, in view of the a. P. Charitable and Religious Institutions act (Act 16/87) (hereinafter referred to as the Act ). He further submits that the appellant was not given adequate opportunity to contest the matter, or to deposit the decretal amount. ( 4 ) SRI M. V. S. Suresh Kumar, learned counsel for the respondents, on the other hand, submits that the appellant has been obstructing the execution proceedings, on one pretext or the other, ever since 1995, and that all the applications filed by him, from time to time, were rejected. He submits that the present application is not maintainable, since applications filed for on the same grounds were rejected by the executing Court and affirmed by this court. He submits that the present application is not maintainable, since applications filed for on the same grounds were rejected by the executing Court and affirmed by this court. He also contends that the relief to be granted under Rule 90 of Order 21 c. P. C. , is not absolute, and if it emerges that the objector has pleaded or was entitled to plead a ground before the sale takes place, it shall not open to him to challenge the sale on that ground at a later stage. ( 5 ) THIS appeal arises out of an application filed by the appellant, at the stage of execution. As observed earlier, the suit filed by the 1st respondent against the appellant was decreed way back in the year 1985. On filing of the E. P. , the executing Court served notice on the appellant. However, he remained absent on the date of hearing i. e. , on 15-6-1995 and was set ex parte. Further steps to bring the property to sale were taken. The sale notice was served upon that appellant on 7-11-1995, intimating the next date of hearing as 23-1-1996. This time also he did not turn up. The E. P. was posted on 15-4-1996, for settlement of terms, for proclamation of sale. It was at this stage, that the appellant filed E. A. No. 111 of 1996, under Section 47 C. P. C. , alleging that the E. P. , is not maintainable, on the ground that the hereditary Dharmakartha cannot represent the temple, in view of change of law, under the Act. He also filed E. A. No. 112 of 1996, for adjournment of the sale, scheduled to be held on 15-4-1996. The sale could not be proceeded with on 15-4-1996, for want of bidders. Hence, e. A. No. l 12 of 1996 became infructuous. E. A. No. l 11 of 1996 was dismissed on merits, on 26-6-1997, on the ground that the appellant cannot file it, once he was set ex parte in the E. P. ( 6 ) HAVING realized that unless the order setting him ex parte in the E. P. is set-aside, he cannot file applications, raising objections, the appellant filed an application, under Rule 106 of Order 21 c. P. C. , for that purpose. Since there was delay in submission of the application, he filed E. A. No. 258 of 1997, under Section 5 of the Limitation Act, for condonation of delay. The executing Court dismissed the e. A. No. 258 of 1997, on merits. The same was challenged by the appellant in C. R. P. No. 5142 of 1997. This Court dismissed the C. R. P. on 25-6-1998. Thereby the order, setting the appellant ex parte in the execution proceedings, as well as consequential order passed on 26-6-1997 in e. A. No. 111 of 1996, became final. ( 7 ) THE executing Court posted the e. P. on 27-11-1998, for further steps, to bring the property to sale. On that day, the appellant filed an application seeking adjournment and requesting time for payment of the E. P. amount. Acceding to his request, the matter was adjourned to 7-12-1998. He made a further request for extension of time. This request was also acceded to, and the matter was adjourned to 25-1-1999. The appellant did not pay the amount as promised. The sale did not take place, for want of bidders. Thereafter, the appellant continued his tactics of stopping the sale, by making false promises, that he would pay the E. P. amount. In spite of the fact that the appellant did not stand by his word, the executing Court went on adjourning the matter to several dates. Ultimately, the respondent-temple sought permission of the executing Court to participate in the bid, under Order 21, Rule 72 C. P. C. Such a permission was accorded. In the bids that have taken place, the respondent became the highest bidder. Inasmuch as the bid amount was higher than the amount to be recovered under the E. P. , the balance was deposited by the respondent. It is at this stage, that the appellant filed the present E. A. ( 8 ) RULE 90 of Order 21 C. P. C. , provides for setting aside the sale of immovable properties in the execution, if the sale is vitiated by any irregularity or fraud. The irregularity or fraud, which is said to have vitiated the sale, has to be specifically pleaded by the judgment-debtor, or any person entitled for share in the rateable distribution of assets. The irregularity or fraud, which is said to have vitiated the sale, has to be specifically pleaded by the judgment-debtor, or any person entitled for share in the rateable distribution of assets. Sub-rule (2) thereof mandates that the sale shall not be set aside on the grounds referred to in sub-rule (1), unless the Court is satisfied that the applicant sustained substantial injury, on account of such irregularity or fraud. Sub-rule (3) is to the effect that no application to set aside the sale shall be entertained, on a ground if the applicant could have taken or pleaded the same before the proclamation of sale was drawn. The Rule is enacted to protect the interests of the judgment-debtors, where an immovable property is brought to sale by playing fraud on the Court, or where the entire proceedings suffer from any irregularity. It is never meant for the benefit of a judgment-debtor, who wants to obstruct the proceedings, on one pretext or the other. A reading of sub- rule (3) discloses that application under sub- rule (1) can be made only on such grounds, as were not available to the judgment-debtor, when the property was brought to sale. It clearly disables a judgment-debtor from seeking the relief of setting aside the sale, if he could have raised the objection pleaded in the application filed under Rule 90 of order 21 C. P. C. , before the sale was brought about. Even where the sale proceedings are vitiated by any irregularity, or fraud, and if the judgment-debtor was aware of it, before confirmation of the sale, he cannot be permitted to reserve those grounds to be pressed into service after the sale is confirmed, much less if the same ground was pleaded earlier and rejected by the Court. ( 9 ) REVERTING to the facts of the case, the only ground or irregularity pleaded by the appellant was that the 1st respondent- temple, was not properly represented, in view of the change in law, as to administration of temples, through the Act. However, this exactly was the plea raised by him in E. A. No. 111 of 1996. That application was dismissed by the executing court on 26-6-1997, and it became final with the dismissal of C. R. P. No. 5142 of 1997, by this Court. No other irregularity or fraud was pleaded. However, this exactly was the plea raised by him in E. A. No. 111 of 1996. That application was dismissed by the executing court on 26-6-1997, and it became final with the dismissal of C. R. P. No. 5142 of 1997, by this Court. No other irregularity or fraud was pleaded. When Rule 90 (3) of Order 21 C. P. C. , bars an application to set aside the sale; if the ground pleaded therefor could have been raised, before the confirmation of sale, the question of interfering with the sale, on the basis of a ground, which was specifically raised, rejected by the executing Court and confirmed by this Court; does not arise. ( 10 ) AN overview of the various proceedings that have taken place in the execution; the nature of applications filed by the appellant; the attitude exhibited by him, from time to time, clearly demonstrates that he has taken the executing Court and the respondents, for a ride. It is on account of such attitudes exhibited by the parties, that the efficacy and effectiveness of the courts suffers a set back. It is true that the party is entitled to take such pleas as are available to him, in law, and entitled to be granted the relief. However, where the procedure and the concern shown by the court, towards its citizens, is misused, there is every likelihood of people loosing faith in the system. The steps aimed at such efforts, deserve to be curbed with iron hand. Nothing more is needed to demonstrate such an attitude on the part of the appellant, than to refer to the number and nature of applications filed by him. The executing Court had meticulously considered each and every plea raised by the appellant and passed a well-considered order. No interference is called for the same. ( 11 ) THE C. M. A. is dismissed with costs throughout, and the executing Court is directed to complete the remaining formalities in the execution, within three weeks from the date of receipt of a copy of this judgment. Consideration of any objections that may be raised by the appellant or any other parties, shall be only after the respondents are put in possession of the property sold in auction.