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2004 DIGILAW 330 (AP)

P. Divya v. P. Jayender Rao

2004-03-17

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS C. M. A. demonstrates the extent to which the Courts have become vulnerable to frivolous litigation. It is the instance of this nature that are shaking the faith and confidence of the citizens in the efficacy of the Courts. ( 2 ) ONE Mr. Nagender Rao had two sons, by name, Jayender Rao and Suchender Rao and two daughters, by name, Indira and nagamani. Indira filed O. S. No. 88 of 1991 in the Court of the IV Senior Civil Judge, City civil Court, Hyderabad for partition of the joint family properties. She impleaded her father, mother, two brothers and a sister as defendants. The parties entered into compromise and a decree in terms of the compromise came to be passed on 29-04-1992. The appellant herein is the daughter of Dr. Suchender Rao, who figured as defendant No. 4 in O. S. No. 88 of 1991, and is second respondent in this C. M. A. ( 3 ) UNDER the compromise decree, the house in possession of the second respondent fell to the share of the other brother, by name, Jayender Rao, the first respondent herein. The first respondent filed e. P. No. 113 of 2000 to execute the decree in so far as it relates to the said house. This was resisted by the second respondent on one pretext or the other. When he was not successful in the effort, he got filed a claim in e. A. No. 342 of 2002 through his minor sons, represented by his wife Dr. P. Savitri. The executing Court tried the said E. A. extensively by recording evidence and considering the matter on merits. Ultimately, it dismissed the E. A. on 07-01-2004 by awarding exemplary costs. ( 4 ) THEREAFTER, E. A. No. 76 of 2004 was filed within few days by the appellant herein, who is a minor daughter of respondent no. 2. The appellant is represented by her mother Dr. P. Savitri, who represented her minor sons in E. A. No. 342 of 2002. The executing Court dismissed the E. A. No. 76 of 2004 through its order, dated 04-03-2004. 2. The appellant is represented by her mother Dr. P. Savitri, who represented her minor sons in E. A. No. 342 of 2002. The executing Court dismissed the E. A. No. 76 of 2004 through its order, dated 04-03-2004. The same is challenged in this C. M. A. ( 5 ) LEARNED Counsel for the appellant submits that under Rule 58 of Order XXI of c. P. C. a claim petition is to be tried as a suit and that there was no justification for the executing Court in rejecting the E. A. in limine without issuing notice to the parties and without undertaking trial of the matter. He places reliance on the Judgments rendered by the Supreme Court in support of his contention that the appellant is also entitled to an independent share and that the compromise decree itself was vitiated. Extensive arguments are addressed touching on the validity of the compromise decree passed in O. S. No. 88 of 1991. The counsel also submits that the appellant herself filed an independent suit being o. S. No. 1566 of 2004 in the Court of the V senior Civil Judge, Hyderabad for the relief of partition, and execution of the decree in o. S. No. 88 of 1991, would render the suit infructuous. ( 6 ) A perusal of the order under appeal discloses the extent to which the process of court was misused. Having subscribed to a compromise decree, the second respondent went on causing one obstruction or the other. Since, he failed in his effort to obstruct the execution of the decree, he pressed his two minor sons into service. E. A. No. 342 of 2002 was filed and it was tried like a suit. The allegation in this E. A. was that the second respondent colluded with him, his brother and sisters and deprived the petitioners of their rights. During the course of trial of this E. A. second respondent deposed in favour of his children. The collusion was more than evident. Wife of second respondent, who acted as guardian of petitioners in this E. A. deposed as P. W. 1 and admitted that the application was filed at the instance of the second respondent. The e. A. was dismissed with exemplary costs on 07-01-2004. Even this did not deter them from causing further obstruction to the execution. Wife of second respondent, who acted as guardian of petitioners in this E. A. deposed as P. W. 1 and admitted that the application was filed at the instance of the second respondent. The e. A. was dismissed with exemplary costs on 07-01-2004. Even this did not deter them from causing further obstruction to the execution. The appellant herein who is the minor daughter appears to have been kept in spare to be pressed into service, if other efforts did not fructify. ( 7 ) LEARNED Counsel for the appellant submits that the E. A. ought not to have been dismissed in limine and in view of Rule 58 of order 21 of Code of civil Procedure (for short the Code ), it ought to have been tried as a separate suit. He places reliance upon the judgment of this Court in Arif Abdul Ghani v. S. Maheshwar Rao. ( 8 ) THERE is hardly any controversy as regards this proposition. For all practical purposes, a claim petition presented under rule 68 of Order 21 of the Code has to be treated as a plaint, and the matter be tried as a suit. However, it cannot be insisted that every plaint presented to a Civil Court be tried on merits, and after hearing the parties. Under Order 7 Rule 11 of the Code, the courts are conferred with the power to reject the plaint on the grounds, such as, non disclosure of cause of action, relief being under-valued, the documents being insufficiently stamped or the subject matter of the suit having been barred by any law. In the present case, the executing Court was posted with all the facts and the claim petition did not disclose any cause of action. The appellant was not even born by the time the decree which is sought to be obstructed came to be passed. At the most, she had rights to seek partition against her father, the second respondent herein. It was not at all competent for her to set at naught the partition that took place between her father and other co-parceners. The appellant was not even born by the time the decree which is sought to be obstructed came to be passed. At the most, she had rights to seek partition against her father, the second respondent herein. It was not at all competent for her to set at naught the partition that took place between her father and other co-parceners. ( 9 ) LEARNED Counsel for the petitioner relies upon the Judgments of the Supreme court in Sukhrani v. Hari Shanker and ratnam Chettiar v. S. M. Kuppuswamu, in support of his contention that where the rights of a minor co-parcener are adversely affected, it is always competent for the courts to reopen the partition at a later stage. Firstly, the appellant herein cannot be treated as minor co-parcener in the partition between her grand father and his children. Secondly, she is not a party to the suit. ( 10 ) UNDER these circumstances, the c. M. A. is dismissed. Though it is a case for award of exemplary costs, no order is passed in this regard, since notice was not issued to the first respondent. The executing court is directed to proceed with the execution of the decree unhindered by any such obstacles that may be caused hereafter and give a quietus to the matter earliest.