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2004 DIGILAW 140 (AP)

T. Nabi Saheb v. V. P. Sivaiah

2004-02-06

M.NARAYANA REDDY

body2004
M. NARAYANA REDDY, J. ( 1 ) THIS judgment, according to Law, arises out of a Civil Miscellaneous Appeal, filed by the sole appellant, against R-1 to R-5, under sub-Rule (4) of Rule 58 of Order XXI, CPC, questioning the, validity and legality, of the adjudications made by, and set forth in para 2, infra. ( 2 ) ORDERS, dated 22-4-2002, of the court of the Principal Senior Civil Judge, ananthapur (Executing Court), made in e. A. No. 449 of 1999 in EP No. 41 of 1994 in o. S. No. 286 of 1991, of its file, and the decree of even date, that followed the same, therein. ( 3 ) PERUSED the material papers of the record. ( 4 ) HEARD arguments of the learned counsel for both the parties. ( 5 ) AT the very outset, I am of the opinion, that, the brief material required, for facts and circumstances of the case, and, the brief background, thereof, insofar as the same are factually and legally germane, for the purpose of the present Judgment, should be set forth, as under, for deciding the merits or demerits, and the maintainability, or otherwise, of the foregoing impugned orders, as well as, the Civil Miscellaneous appeal etc. ( 6 ) THE sole appellant in this Civil miscellaneous Appeal is a third party, and, correspond to the sole petitioner, being, the claim-petitioner in EA No. 449 of 1999 in EP no. 41 of 1994 in O. S. No. 286 of 1991, of the file of the said Executing court. R-1 to R-4 in the said EA No. 449 of 1999, and, correspond, respectively to, D. Hrs. , 1 to 4 in ep No. 41 of 1994, of the said Executing court, and plaintiffs 1 to 4 in that O. S. No. 286 of 1991, of the file of the Court of Additional senior Civil Judge, Ananthapur (Trial Court ). R-5 herein correspond to R-5 in the said ea 449 of 1999 and the J. Dr. , in that E. P. and the sole defendant in that suit. ( 7 ) THE parties are hereinafter referred to as claim petitioners, the D. Mrs. and the J. Dr. as the case may be unless, so specified. ( 8 ) THE subject matter of the said EA no. , in that E. P. and the sole defendant in that suit. ( 7 ) THE parties are hereinafter referred to as claim petitioners, the D. Mrs. and the J. Dr. as the case may be unless, so specified. ( 8 ) THE subject matter of the said EA no. 449 of 1999, of the said Executing Court, as well as the present Civil Miscellaneous appeal, and, the reliefs claimed in respect whereof, and as described in the Schedule of the said EA, as well as, the said EP, is reproduced, hereunder:house situated in RD and SRD of anantapur within Municipal limits bearing Old Ward No. 12, New Ward no. 12 and present ward 19, Block no. 1, Town Survey No. 1928, Paiki house bearing 18/169-B (correct Door number) and bounded by: east-Raju s House, South-Railway feeder Road, West-House of venkatamma, North-House of Rokhiya, measuring: south-North: 75 east-West: 18 ( 9 ) THE D. Hrs, filed the said O. S. No. 286 of 1991, against the sole defendant, in the said Trial Court, for recovery of a sum of rs. 1,50,000/-, with interest thereon, and for costs of the suit etc. , etc. ( 10 ) AT the time of filing of the suit, the d. Hrs. filed IA No. 730 of 1991, under Rule 5 of Order XXXVIII CPC, and obtained attachment before Judgment, of the said schedule Property referred to in 8 supra, on 10-12-1991. ( 11 ) SUBSEQUENTLY, after due trial thereof, the said O. S. No. 286 of 1991, transformed into a Judgment and Decree, both, dated 22-6-1994, directing the sole J. Dr. , to pay to the D. Hrs. , the suit amount of rs. 1,50,000/-, with interest thereon, at 12% per annum, etc. , and costs of the suit. ( 12 ) SUBSEQUENTLY, in execution of the foregoing Decree, the D. Hrs. filed against the J. Dr. , the said EP No. 41 of 1994, for recovery of the decretal amount, by way of sale of the suit Schedule Property. ( 13 ) AT that stage, the present claim petitioner filed the said E. A. No. 449 of 1999, against the D. Hrs. , and the J. Dr. , under rule 58 of Order XXI, CPC, requesting the executing court, to raise the foregoing attachment before Judgment effected over it, on 10-12-1999. ( 13 ) AT that stage, the present claim petitioner filed the said E. A. No. 449 of 1999, against the D. Hrs. , and the J. Dr. , under rule 58 of Order XXI, CPC, requesting the executing court, to raise the foregoing attachment before Judgment effected over it, on 10-12-1999. ( 14 ) THE case of the claim petitioner in the said E. A. No. 449 of 1999, is that, earlier, on 15-6-1990, the J. Dr. , executed in his favour, an agreement of sale, agreeing to sell to him the said Schedule Property, and simultaneously therewith, delivered to him, the possession thereof, and that, however, because, subsequently, the J. Dr. failed to execute a regular Deed of sale in his favour, in pursuance of that agreement, he (claim petitioner), filed against the J. Dr. , earlier, o. S. No. 56 of 1992, for specific performance of that agreement, which, ultimately, was decreed in his favour, on 30-4-1992, and, subsequently, in process of execution, thereof, by him (claim petitioner), against the j. Dr. , in EP. No. 119 of 1992, the Executing court executed in favour of the claim petitioner, a Sale Deed, dated 7-8-1993, in pursuance of that Decree for specific performance, and that, therefore, since the date of the sale agreement, upto date the claim petitioner has been in possession and enjoyment of the Schedule Property, but, that, however, knowing the same full well, the D. Hrs. , with mala fide intention, got attached the same before Judgment, on 10-12-1991, even though, as on that date, the J. Dr. had no subsisting right, and that, therefore, the attachment before Judgment, got effected by the D. Hrs. , in O. S. No. 286 of 1991, in IA No. 730 of 1991, on 10-12-1991, has to be raised etc. , etc. ( 15 ) IN the said E. A. No. 449 of 1991, the d. Hrs. , 1 to 4, filed a common counter, inter alia, urging that the alleged agreement of sale, dated 15-6-1990, alleged to have been executed by the J. Dr. , in favour of the claim petitioner, and sought to be relied upon by the claim petitioner, is a collusive one, between both of them, because, both of them are related to each other, the claim petitioner being father-in-law of the J. Dr. , in favour of the claim petitioner, and sought to be relied upon by the claim petitioner, is a collusive one, between both of them, because, both of them are related to each other, the claim petitioner being father-in-law of the J. Dr. , and that, hence, the attachment before judgment got effected by the D. Hrs. , in IA no. 730 of 1991 in O. S. No. 286 of 1991, on 10-12-1991, is valid and legal, and cannot be raised at all, as claimed by the claim petitioner etc. , etc. Hence, the EA has to be dismissed with costs to the D. Hrs. , etc. , etc. ( 16 ) IN EA No. 449 of 1999, the J. Dr. , did not file any counter, and did not contest the same. ( 17 ) AFTER framing points for enquiry, thereinto, the said Executing Court, enquired into the said E. A. No. 449 of 1999 in the process whereof, it recorded the oral evidence of P. W. 1 (claim petitioner), and p. W. 2 and D. W. 1 (D. Hr. No. 1) and D. W. 2, and exhibited the documentary evidence, by way of Exs. A-1 and A-2, and Exs. B-1 to B-3, and, later, after due arguments thereinto, finally, adjudicated thereupon by its now impugned orders, and the Decree, both dated 22-4-2002, set forth in para 2, supra, as under: ( 18 ) (A) Refused to raise the attachment, as claimed therein; (b) Consequently dismissed the EA in toto; (c) Directed the claim petitioner to pay exemplary costs of rs. 1,000/- to DHrs 1 to 4. ( 19 ) AGGRIEVED thereby, and, hence, questioning the, validity and legality thereof, the claim petitioner filed the present Civil miscellaneous Appeal, as set forth, in para 1, supra read with para 2 supra. ( 20 ) THE learned counsel for the claim petitioner relied upon the three Rulings, as under: (I) Rajender Singh v. Ramdhar Singh and others delivered, inter alia, interpreting the provisions of rules 5 and 7 of Order XXXVIII, cpc, read with Section 136, thereof, inter alia, postulating, that an agreement of sale creates an obligation attached to the ownership of the property, and since the attached creditor (D. Hr.) is entitled to attach, only, the right, title and interest of the J. Dr. , the attachment, cannot be free from obligations incorporated under the contract. , the attachment, cannot be free from obligations incorporated under the contract. (II) Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan, delivered, inter alia, interpreting rules 10 of Order XXXVIII, and section 64, thereof, as also, sections 40 and 54 of the Transfer of Property Act, 1882, etc. , and postulating, that, the contractual obligation, created by the pre- attached agreement of sale, is in respect of ownership of the land, while, attachment before Judgment is only of right, title and interest of the Judgment Debtor. (Ill) Judgment, dated 28-11-2003, of a division Bench of the High Court of andhra Pradesh, in W. P. Nos. 23436 and 23553 of 2003 (Talatam srinivas v. The Registrar (Administration), High Court of A. P. , hyderabad), inter alia, observing that the District Judge cannot ignore a Ruling of the High Court, ipso facto, on the ground that, earlier, the high Court did not consider and give Rule etc. , and that, even if it be so, the District Judge cannot ignore such a Ruling of the High Court, till such decision of the Division Bench is re-considered, or reviewed by the high Court, subsequently, etc. The learned counsel for the claim petitioner sought to rely upon this ruling, claiming that, in this Ruling, it is postulated, the Subordinate courts should observe judicial discipline, etc. ( 21 ) THE facts and the details, set forth in para 6 to 18, supra, are all admitted, or, undisputed, and, in any case, borne out by record, in black and white. ( 22 ) IN respect of the said Schedule property, there was an agreement of sale, dated 15-6-1990, executed by the J. Dr. , who is the original owner of the said Schedule property, in favour of the claim petitioner. Subsequently, in EP No. 119 of 1992 in o. S. No. 56 of 1992, it transformed into regular and pucca Sale Deed executed by the Executing Court, in favour of the claim petitioner, on 7-8-1993. While so, in the mean time, on 10-12-1991 in I. A. No. 730 of 1991 in O. S. No. 286 of 1991, the D. Hrs. , got the same property attached before judgment, as set forth in para 10 supra. While so, in the mean time, on 10-12-1991 in I. A. No. 730 of 1991 in O. S. No. 286 of 1991, the D. Hrs. , got the same property attached before judgment, as set forth in para 10 supra. ( 23 ) WHEN the facts, mentioned in the immediately preceding paragraph, are examined, in the light of the legal position, postulated by the Supreme Court, in two rulings mentioned in 20 supra then, in my opinion, it will factually and legally, ipso facto, follows, that, the impugned attachment is bound to be raised, but, however, the Executing court failed to do so, by the now impugned Orders, as set forth in para 2, supra. ( 24 ) EVEN otherwise, the Record discloses, that, subsequent to the said attachment before Judgment, on 10-12-1991, got effected in I. A. No. 730 of 1991, the D. Hrs. , filed against the claim petitioner, and the J. Dr. , O. S. No. 27 of 1996 for cancellation of the Decree, dated 30-4-1992, obtained by the claim petitioner, against the J. Dr. , in O. S. No. 56 of 1992, and also, of the sale deed; that, the said sale deed, dated 7-8-1993, executed by the executing court, in favour of the claim petitioner in E. P. No. 119 of 1992 in OS No. 56 of 1992, is void, and not valid, and hence, for declaration thereof as invalid, etc. ( 25 ) SO, therefore, when there is a suit filed by the D. Hrs. , and the same is pending trial for the primary relief of cancellation of the Decree, in O. S. No. 27 of 1996, and the sale Deed, executed therein, etc. , of such a sale deed, as void, and for it, being set aside, then, it will be the competent court, to decide, on the question, validly and legally. The D. Hrs. , could have awaited the result, thereof. ( 26 ) IN the foregoing facts and circumstances, I am of the opinion, that, the executing court in said EP No. 41 of 1994, and in the present E. A. No. 449 of 1999, could not and, ought not, to have probed into, and, much less, decided upon the, validity and legality, of either of the alleged agreement of sale, dated 15-6-1990, alleged to have been executed by the J. Dr. , in favour of the claim petitioner, or the Decree, that followed, in pursuance thereof, in the suit o. S. No. 56of 1992, etc. ( 27 ) EVEN otherwise, I am of the opinion, that, the Executing court, under sub-rule (2) rule 58 of Order XXI, CPC, cannot declare the, validity and legality, of a Judgment and decree, passed by a competent court of law, in the original suit proceedings. Much more, so, admittedly, there is a separate suit filed for the same relief, as aforesaid. ( 28 ) ANY observations made by the executing court, in O. S. No. 286 of 1991, which is a money suit, in respect of the said sale agreement, cannot have the, factual and legal effect, of rendering the Decree, in o. S. No. 56 of 1992, invalid, much less, the sale deed, executed by that court, in pursuance thereof, on 7-8-1993. ( 29 ) EVEN, if, for a moment, the claim petitioner and the J. Dr. , are related, respectively, as father-in-law and son-in-law, still, notwithstanding, that fact, by itself, will not, ipso facto, render the said Sale Deed, dated 7-8-1993, in favour of the claim petitioner, executed by the Executing court, invalid, or inoperative. In that O. S. No. 56 of 1992, it is only the court after finding, that, the agreement of sale, dated 15-6-1990, executed by the J. Dr. , in favour of the claim petitioner, as valid must have long back, on 30-4-1992, passed the Decree, for specific performance in favour of the claim petitioner, which, ultimately, in EP No. 119 of 1992 transformed into a regular court, executed sale deed in his favour, on 7-8-1993. ( 30 ) TO decide, whether the same is correct, or wrong, has to be done, again, by a competent court, of original Jurisdiction, in respect of which, admittedly, already the d. Hrs. , filed the suit, O. S. No. 27 of 1996, which is pending adjudication of by the Trial court, on a future date, but not, the executing Court, in that EA No. 449 of 1999. ( 31 ) HENCE, I am of the opinion, that, the impugned Orders and the Decree, are unsustainable at, Fact and Law, and hence, are liable to be set aside, in toto, and hence, ea No. 449 of 1999, has to be allowed, as is being done, hereunder. ( 31 ) HENCE, I am of the opinion, that, the impugned Orders and the Decree, are unsustainable at, Fact and Law, and hence, are liable to be set aside, in toto, and hence, ea No. 449 of 1999, has to be allowed, as is being done, hereunder. ( 32 ) HOWEVER, the present adjudication will be subject to the future result of the said o. S. No. 27 of 1996, filed by the D. Hrs. , against the claim petitioner, and the J. Dr. , for cancellation of the Decree, in EP No. 119 of 1992, in O. S. No. 56 of 1992, and the consequent Sale Deed, dated 7-8-1993, executed by the court, in favour of the claim petitioner, etc. ( 33 ) HENCE, the High Court doth hereby adjudicate upon the Civil Miscellaneous appeal, as under: (I) Set aside, in toto, the impugned orders, and the Decree, both, dated 22-4-2002, made in EA No. 449 of 1999, set forth in detail, in para 2, supra; (II) Consequently, adjudicate upon the said E. A. No. 449 of 1999, of the court of Principal Senior Civil Judge, ananthapur (Executing Court) as under: (a) Raise the attachment effected over the plaint Schedule property, in pursuance of the orders, dated, 10-12-1991, made in IA No. 730 of 1991, in o. S. No. 286 of 1991, of its file; (b) Direct the parties to the EA, to bear their respective costs, incurred herein; (III) Direct the parties to the CMA to bear their respective costs, incurred herein.