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2005 DIGILAW 970 (AP)

Kalyani Venkateswara Rao v. Ande Kameswari

2005-10-20

C.Y.SOMAYAJULU

body2005
C. Y. SOMAYAJULU, J. ( 1 ) THIS revision is preferred against the order dated 25-04-2005 directing sale of the property of the revision petitioner in execution of a final decree for sale of the hypotheca, on the following grounds:" (1) The Court below failed to see any other mode to recover the decretal amount. (2) The Court below failed to consider the e. P. Schedule amount is not correct even though the petitioner raised in his counter. (3) The Court below ought to have seen that the part of the land should put for sale which is equivalent to decretal amount, but ordered sale of entire property of worth Rs. 10,00,000/. (4) The Court below failed to consider the plea of the petitioner that he has accepted to pay half of the decretal amount. "copy of the proceedings in the E. P. recorded by the executing Court, produced by the petitioner as a material document shows that on 10-3-2005, the objections of the petitioner for execution of the decree were over ruled, and the E. P. was posted for filing of the sale papers and encumbrance certificate and after filing of the sale papers, terms of sale were settled and the E. P. schedule property, which is the hypotheca, was ordered for sale. ( 2 ) SINCE the E. P. is for sale of hypotheca, in pursuance of a final decree for sale thereof, question of the decree holder taking recourse to other mode of execution for recovery of the decretal amount or his praying for sale of only a part of the E. P. schedule property does not arise. The other two grounds raised in this revision are the objections that could have been taken at the stage of Rule 22 of Order 21 C. P. C. Only after overruling the objections raised by the Petitioner on 10-3-2005 was the E. P. further steps ordered. So the grievance if any of the Petitioner can be for the executing court overruling his objection on 10-3-2005, but he cannot question the order of the executing Court, ordering sale of the hypotheca on the above grounds, because those grounds are barred under the principles of constructive resjudicata and therefore, the revision is but an abuse of process of Court. Therefore, the revision petition, which is devoid of merits, is dismissed with costs.