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2013 DIGILAW 443 (AP)

Dubba Jaya Rami Reddy v. K. Jaithun Bee

2013-06-17

C.V.NAGARJUNA REDDY

body2013
Judgment : This civil revision petition arises out of order, dated 07.09.2011, in C.M.A.No.1 of 2010, on the file of the learned Senior Civil Judge, Atmakur. The petitioner secured a decree in O.S.No.140 of 2001 on the file of the learned Junior Civil Judge, Atmakur. During the pendency of the suit, the property belonging to the respondents was attached. Following the decree, the petitioner filed E.P.No.85 of 2003 in which the attached property was brought to sale. The petitioner filed an application for recording delivery of the property. Accordingly, the executing Court after recording delivery of possession of the property, closed the E.A., on 23.07.2009. Thereafter, the respondents have filed E.A.No.154 of 2007 in E.P.No.85 of 2003 under Section 47 CPC for setting aside the sale held on 06.10.2004. This application was dismissed by the trial Court. Feeling aggrieved thereby, the respondent filed C.M.A.No.1 of 2010. The learned Senior Civil Judge has not only entertained the said CMA but also allowed the same by the order under revision. At the hearing, Sri E.V.V.S. Ravi Kumar, learned counsel for the petitioner, submitted that the lower appellate Court had no jurisdiction to entertain the CMA in view of amendment to Section 2(2) of CPC, which omitted words “Section 47” by Act CIV of 1976 w.e.f., 01.02.1977 and that therefore no CMA against the order passed in an execution proceeding would lie under Order XLIII CPC. He accordingly submitted that the lower appellate Court has committed a serious jurisdictional error in entertaining and allowing the CMA. He has placed reliance on the judgment of a Division Bench of this Court in Challa Ramamurthy v. Pasumarti Adinarayana Sons, Registered firm rep. by its Managing Partner Pasumarti Ramamurthy (1984 AWR 134 (DB)). Sri S. Venkata Subba Rao, learned counsel for the respondents, while fairly conceding to this legal position, however, sought to sustain the order of the lower appellate Court by stating that the party cannot be made to suffer for choosing a wrong forum by his counsel. In Challa Ramamurthy (supra), the Division Bench has considered the effect of amendment to Section 2(2) of CPC which originally read as under : “2. In Challa Ramamurthy (supra), the Division Bench has considered the effect of amendment to Section 2(2) of CPC which originally read as under : “2. (2): ‘decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include : (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation:-A decree in preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” The Division Bench has also considered the amended definition of the decree under Amendment Act CIV of 1976 which deleted the words “Section 47” from the definition and held that the intention of the legislature in passing the Amendment Act is to render the decisions under Section 47 as non-decrees so that there may not be any second round of litigation by way of appeals and that the whole object behind this amendment is to shorten the litigation and protracted course of execution proceedings to enable the decree holders to enjoy the fruits of the decree and that the parties should not have a second round of litigation. On the above admitted legal position, it is quite apparent that the lower appellate Court has committed a serious jurisdictional error in entertaining the CMA even though no such appeal was maintainable before it. Irrespective of whether the party has chosen or advised to choose a wrong forum, the order passed by the Court, which inherently lacks jurisdiction cannot be sustained as the lower appellate Court is a corum non judis, qua the lis entertained by it and the order passed by it. For the above-mentioned reasons, the order and decree of the learned Senior Civil Judge, Atmakur under revision is set aside. The respondents are, however, left with the liberty to avail appropriate remedies available to them in law. The civil revision petition is accordingly allowed. For the above-mentioned reasons, the order and decree of the learned Senior Civil Judge, Atmakur under revision is set aside. The respondents are, however, left with the liberty to avail appropriate remedies available to them in law. The civil revision petition is accordingly allowed. As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.7219 of 2011 shall stand disposed of as infructuous.