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2008 DIGILAW 926 (AP)

J. Snehalatha v. B. Satyanarayana Agarwal

2008-10-29

C.V.RAMULU

body2008
JUDGMENT:- This Second Appeal under Section 100 of Civil Procedure Code is directed against the decree and judgment made in AS No.57 of 2005 dated 7.7.2008 on the file of the learned Principal District Judge, Warangal, wherein the appeal filed by the appellant herein against the order and decree passed in EA No.183 of 2004 in EP No.76 of 1997 in OS No.31 of 1984 Description of attached property House No.8-1-9 situated near Railway Gate, S.V.N. Road, Warangal with the following boundaries. dated 19.4.2005 on the file of the learned II Additional Senior Civil Judge, Warangal was dismissed. North: House of K. Yethirajulu South: House of P. Pedda Kistaiah East : House of Erukula Soma Sekharam. West: Road 2. The brief facts of the case are that the first respondent-decree holder obtained money decree in as No.31 of 1984 on the file of the learned II Additional Senior Civil Judge, Warangal on 6.2.1997 against the second respondent. The said decree stipulated that the second respondent judgment debtor should pay to the first respondent-decree holder a sum of Rs. l,75,504.47 ps. together with future interest @ 6% per annum on the principal sum of Rs. 1,59,668.47 ps. together with costs of the suit. The said decree was put into execution by the first respondent-decree holder in EP No.76 of 1997 and sought attachment of EP schedule property viz., house bearing No.8-1-9, S.V.N. Road, Warangal with specific boundaries vide order of attachment dated 24.1 0.1997. 3. According to the appellant, under registered document No.27 14/00 dated 5.6.2000, second respondent-judgment debtor gifted the ground floor of the house bearing No.8-1-9 to the extent of 110.4 Sq yards with specific boundaries as mentioned in the schedule to the decree in her favour. The said House No.8- 1 -9 had originally Municipal No.8/10 and the same was revised to 8-113 and later further revised to 8-1-9. The said house has two separate portions facing the main road. The southern portion of the ground floor was bearing M.No.8-1-12 originally which was later revised to 8- 1-8. The northern portion bearing H.No.8-1-13, which was later revised to 8-1-9. The boundaries in the warrant of attachment referred to above and the boundaries in the gift deed of the appellant are described below: Description of gifted property Ground floor of house bearing M.No.8/10 revised to 8-1-13 and further revised to 8-1-9 extent 110.4 Sq yards equivalent to 92 Sq. The northern portion bearing H.No.8-1-13, which was later revised to 8-1-9. The boundaries in the warrant of attachment referred to above and the boundaries in the gift deed of the appellant are described below: Description of gifted property Ground floor of house bearing M.No.8/10 revised to 8-1-13 and further revised to 8-1-9 extent 110.4 Sq yards equivalent to 92 Sq. mtrs. situated at SVN Road, Warangal with following boundaries. North : House of P. Pedda Kistaiah and Om Prakash South : House of K. Yethirajulu East : House of K. Yethirajulu West: S.V.N. Road 4. From the above boundaries, it would be immediately noticed that while the attached property is to the south of K. Yethirajulu's house and the gifted property is to the north of house of K. Yethirajulu. In other words, neither the aforesaid gift settlement deed dated 5.6.2000 nor the said attachment had any effect on the gifted property as the latter was adjacent and different property not covered by the said attachment order. 5. Thus, the appellant has raised the following substantial question of law: 1. Whether both the Courts below have not committed error in not adjudicating upon the claim petition of the appellant as required under Rule 101 and Order 21 CPC instead of summary disposal as recorded by both the Courts? 2. Whether both the Courts have not committed error in applying Section 52 of the T.P. Act in a money suit and money decree which does not involve any immovable property? 3. Whether the Courts below have not committed error in applying Section 47 CPC without noticing that the claim petitioner is claiming an independent title to a property which was not subject-matter of attachment on the date when the gift in favour of the appellant was executed and registered? 4. Whether both the Courts below were justified in rejecting the appellant's claim petition on the ground that the facts relating to independent title of the appellant/claim petitioner were not allegedly disclosed by the judgment debtor? 6. 4. Whether both the Courts below were justified in rejecting the appellant's claim petition on the ground that the facts relating to independent title of the appellant/claim petitioner were not allegedly disclosed by the judgment debtor? 6. Before going into the merits, it may be necessary to notice that the appellant had suppressed many a facts as noticed by the trial Court in its order dated 19.4.2005 in EA No.183 of 2004 in E.P. No.76 of 1999 and EA No.204 of 2004 in EP No.76 of 1997, which reads as under: "The main contention of the petitioner is that she is the absolute owner of the EP schedule property by virtue of gift settlement deed executed R2 in her favour on 5.6.2000 which was subsequently registered as document No.2714/2000. So the original ownership of the R2 over the EP schedule is not disputed. The petitioner further stating that in the auction sale said to have held on 28.8.2000, R3 is learned to have purchased the said property. It is the further case of the petitioner that as R2 is not the owner of the said property, the alleged sale is void ab initio. As such the petitioner is claiming her right ad title over the EP schedule property. The further case of the petitioner is that the property which was actually attached was not sold in the auction. As such, the petitioner is stating that the J. Dr. has no salable interest in the property attached. The application filed by RI for amendment of EP schedule in EP No.26/2000 was subsequently allowed but the amendment cannot have retrospective effect and the property attached cannot be changed with that retrospective effect by such amendment since the alienation of the northern portion of the property by the J.Dr. in favour of the petitioner took place prior to amendment of the EP schedule. The subsequent sale cannot effect the title of this petitioner, since J.Dr. had no salable interest in the northern portion of the ground floor building at the time of auction sale. As seen from the arguments for the learned Counsel for D.Hr and averments made in the petition, it is very clear that R1 who already filed a petition for amendment of EP schedule vide EA No.126/2000 and the said petition was allowed and accordingly EP schedule was amended. As seen from the arguments for the learned Counsel for D.Hr and averments made in the petition, it is very clear that R1 who already filed a petition for amendment of EP schedule vide EA No.126/2000 and the said petition was allowed and accordingly EP schedule was amended. After amendment only the EP schedule property was brought for sale and same was sold in the public auction in which R3 purchased the same. R2, who is contesting the main EP and observing the proceedings round the clock did not raise any objection with regard to his ownership over the EP schedule property after it was amended as per orders in EA No.126/2000 dated 29.6.2000. If really R2 had alienated the EP schedule property in favour of the petitioner by virtue of gift settlement deed dated 5.6.2000, he would have informed the same to this Court while EA No.126/2000 was pending or at least auction was held with regard to EP schedule property. The petitioner herein is no other than the daughter of R2. In the said circumstances, it cannot be said that the petitioner was not aware of the pendency of the suit and during the pendency of the EP, the public auction held in the EP with regard to EP schedule property. As seen from the counter of R1 and arguments of learned Counsel for R1, it is to be seen that if the settlement have taken place before the attachment, R2 could have been stated in his petition to the attachment of property and he could have stated that he had already settled the property by way of' gift settlement deed in favour of the petitioner and he could have stated that he has no interest over the said property, R2 did not say about the alleged gift settlement deed in favour of the petitioner when notice of execution was served on him. The case records reveals that R2 filed EA No.26/01 disputing the value of the property. But R2 never said that he was not the owner of the EP schedule property. The sale was held on 27.1.2002 and at the time also R2 did not say that he was not the owner of the EP schedule property. The case records reveals that R2 filed EA No.26/01 disputing the value of the property. But R2 never said that he was not the owner of the EP schedule property. The sale was held on 27.1.2002 and at the time also R2 did not say that he was not the owner of the EP schedule property. R2 got filed EA No.232/ 98 and EP No.66/98 through his son and mother stating that the schedule property does not belong to him and his son and mother got the same under a Will. In the said petitions, R2 did not say about the alleged gift settlement in favour of the petitioner. It is undisputed fact that in EA No.232/98 and EA No.66/98, R2 was one of the parties. Ought R2 was one of the parties to the said proceedings, he did not say that he settled the EP schedule property in favour of the petitioner. The case records reveals that attachment was effected on 24.10.97. The alleged gift was taken place in the year 2000. The petitioner being the daughter is expected to know the legal proceedings pending with regard to the EP schedule property between R1 and R2. The case records further reveals that R2 filed EA No.273/2002 in the present EP to set aside the sale under Order 21 Rule 90 CPC and in the said petition also he did not mention this fact. The said EA No.273/2002 was also dismissed by this Court and subsequently CMA No.182/02 was preferred on the file of Hon 'ble High Court of A.P. and same was also dismissed. The above said series of attempts by R2 clearly reveals that having failed in his attempt R2 in collusion with the petitioner created the alleged gift settlement deed in favour of the petitioner and filed this petition to prolong the litigations. Moreover, the facts and circumstances clearly reveals that the alleged gift settlement deed was executed by R2 in favour of the petitioner during the pendency of litigation. In the said circumstances, the alleged gift settlement deed in favour of the petitioner is not valid and same is not binding on R1 and R3. This Court did not held public auction with regard to the EP schedule property over a night. Prior to bringing the EP schedule property for sale, this Court had followed the procedure. In the said circumstances, the alleged gift settlement deed in favour of the petitioner is not valid and same is not binding on R1 and R3. This Court did not held public auction with regard to the EP schedule property over a night. Prior to bringing the EP schedule property for sale, this Court had followed the procedure. Before bringing the EP schedule property for sale, a sale notice was served on R2, subsequently the publication was issued and Tom Tom was also done in the locality. It is undisputed fact that R2 followed the EP proceedings and he is well aware of all these steps which were taken by the Court before conducting public auction. R2 never stated that he settled EP schedule property in favour of the petitioner by virtue of gift settlement deed dated 5.6.2000 before bringing EP schedule property for sale. The above facts and circumstances clearly reveals that the petitioner and R2 who are daughter and father colluded together and created the alleged gift settlement deed only to deprive RI and R2 from reaping the fruits of decree. The facts and circumstances clearly reveals that R2, who is the J.Dr in the EP making hectic efforts to delay the EP proceedings". 7. Thus, the trial Court dismissed the petitions with costs vide common order dated 19.4.2005. Aggrieved by the same, appellant preferred AS No.57 of 2005 on the file of the learned Principal District Judge, Warangal. The learned appellate Judge after elaborate consideration of the entire record and after appreciation of law and facts, dismissed the appeal vide impugned order dated 7.7.2008 confirming the order passed by the trial Court. Being aggrieved by the said order, the present second appeal is filed. 8. Heard both sides and perused the orders and decrees passed by both the Courts below. 9. As seen from the above facts, on 6.2.1997 the suit in OS No.31 of 1984 was decreed. On 24.10.1997 attachment of the property was ordered. Warrant of attachment was issued on 8.12.1997. EA No.26 of 2000 was filed for amendment of the schedule property. On 5.6.2000 the very same property, which is the subject-matter of EP No.26 of 2000, was gifted in favour of appellant by her father, who is the judgment debtor in the above suit. 10. Warrant of attachment was issued on 8.12.1997. EA No.26 of 2000 was filed for amendment of the schedule property. On 5.6.2000 the very same property, which is the subject-matter of EP No.26 of 2000, was gifted in favour of appellant by her father, who is the judgment debtor in the above suit. 10. As noticed from paragraphs 9 and 10 of the order passed by the trial Court extracted above, I am of the opinion that this is a case of adapting delay tactics and playing fraud. Immediately after decree was passed and when it was sought to be executed, the mother and brother of appellant filed objections in EA No.22/98 and EP No.66/98, which attained finality before this Court When the EA was filed for amendment of schedule, which was ordered on 9.6.2000, the present gift deed had been executed on 5.6.2000 i.e., after filing of the application for amendment of the schedule property. Thus, the intention of the judgment debtor is to drag on the matter for years together and in this case he was successful in dragging the matter for more than 10 years for nothing. Therefore, the findings recorded by the executing Court as confirmed by the appellate Court cannot be said to be either arbitrary or illegal. Fraud vitiates everything. This is no less than a fraud played, by the judgment debtor by setting up his mother, son and daughter, so that the decree holder may not be able to reap the fruits of the decree obtained 10 years back. Apart from that, no substantial question of law arises for consideration in this second appeal. Though lot of case law was pressed into service on behalf of both the parties, in view of my finding that this is no less than a fraud and fraud vitiates everything, there is no necessity of going into the cases relied upon by the parties. 11. For all the above reasons, the second appeal is devoid of merits and liable to be dismissed and accordingly dismissed. No order as to costs.