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2014 DIGILAW 267 (AP)

Godavarthy Venkateswarlu v. Yellanki Ravi Shankar

2014-02-21

L.NARASIMHA REDDY

body2014
Judgment : The Court of Principal Senior Civil Judge, Tenali, flouted all the norms that are stipulated the context of execution of a decree. The petitioner, who is the judgment debtor, had to approach this Court on number of occasions to protect his rights. The 1st respondent filed O.S.No.139 of 2007 in the Court of Principal Senior Civil Judge, Tenali, against the petitioner, for recovery of Rs.2,15,683/-on the strength of promissory notes. The suit has been decreed ex parte on 28.12.2007 for a sum of Rs.2,17,087/-. About two years after the decree was passed, the 1st respondent filed E.P.No.134 of 2009 and an item of immovable property i.e., an extent of Ac.1.87 cents in D.No.26/2 of Pothumarri village, Guntur District, was attached. It was also put to sale on 14.03.2011. The 2nd respondent, who is said to be a close relation of the 1st respondent, was declared as the highest bidder for a sum of Rs.8,70,000/-. The petitioner filed an application, under Rule 90 of Order XXI CPC, by raising several objections to the auction sale. His contention was that the value of the property is more than Rs.30.00 lakhs at that time, and the sale proclamation itself was not prepared, in accordance with law. Simultaneously, he filed C.R.P.No.1555 of 2011 before this Court, challenging the auction sale. Taking note of the fact that the petitioner has already filed an application under Rule 90 of Order XXI CPC, this Court disposed of the CRP on 02.08.2011, directing that it shall be open to the petitioner to raise all the grounds and the executing Court was directed to entertain the application. The executing Court took up the application filed by the petitioner as E.A.No.392 of 2011. However, it was dismissed for default on 15.02.2012. On the same day, it passed an order in the EP, confirming the sale and closing the EP. It issued a cheque for Rs.52,200/- in favour of the Branch Manager, State Bank of India, Tenali, for purchase of non-judicial stamps, for engrossing the sale certificate. The petitioner filed C.R.P.No.1598 of 2012, feeling aggrieved by the dismissal of EA No.392 of 2011. This Court passed an interim order on 30.03.2012, directing stay of delivery of possession of the property, on condition that the petitioner shall deposit the entire EP amount by the next date of hearing. The petitioner filed C.R.P.No.1598 of 2012, feeling aggrieved by the dismissal of EA No.392 of 2011. This Court passed an interim order on 30.03.2012, directing stay of delivery of possession of the property, on condition that the petitioner shall deposit the entire EP amount by the next date of hearing. The 2nd respondent filed E.A.No.168 of 2012, under Rule 98 of Order XXI CPC, with a prayer to deliver possession of the property. The executing Court passed an order on 21.02.2012, directing that notice returnable by 02.04.2012 be issued to the petitioner herein. On 02.04.2012, the executing Court passed an order, observing that delivery of the property was already effected on 22.03.2012. It was also noted that a telegram was received on 31.03.2012 from this Court to the effect that in CRP No.1598 of 2012, an order of interim stay of delivery of possession, on condition that the petitioner shall deposit the decretal amount, has been passed. CRP No.1598 of 2012 came up for hearing before this Court on 27.09.2012. It was dismissed mainly on the ground that the petitioner entered into an agreement with another person for sale of the property. The fact that the delivery of the property was effected on 22.03.2012, was taken note of. On receiving information that the CRP No.1598 of 2012 was dismissed, the executing Court passed an order on 30.09.2012, observing that possession of the property was already delivered to the 2nd respondent on 22.03.2012 and, accordingly, EA No.168 of 2012 was closed. The said order is challenged in this Civil Revision Petition. Learned counsel for the petitioner submits that at every stage of the proceedings, the trial Court, either while dealing with the suit or the EP, acted with utmost haste and disregarded the relevant provisions of law. He contends that the subject matter of CRP No.1598 of 2012 was only an order, dated 15.02.2012, through which, EA No.392 of 2011 filed for setting aside the sale, was dismissed and, obviously, because of the restricted scope of the same, the legality of delivery of possession of the property was not dealt with therein, except that a casual reference was made. Learned counsel submits that EA No.168 of 2012 filed for delivery of possession was numbered on 21.03.2012 and the executing Court ordered notice returnable by 02.04.2012 to the petitioner. Learned counsel submits that EA No.168 of 2012 filed for delivery of possession was numbered on 21.03.2012 and the executing Court ordered notice returnable by 02.04.2012 to the petitioner. He contends that though this Court passed an interim order in CRP No.1598 of 2012 on 31.03.2012, directing stay of delivery of possession of the property, on condition that the petitioner shall deposit the entire EP amount by the next date of hearing, the executing Court frustrated the said order surreptitiously, by making an observation that the possession was delivered on 22.03.2012. He further contends that no delivery warrant was issued to the bailiff on 21.03.2012 and it is ununderstandable as to how delivery could have been effected on 22.03.2012, once notice returnable by 02.04.2012 was ordered. He submits that the execution sale was conducted in contravention of Rule 64 of Order XXI CPC and a property, which was Rs.30.00 lakhs of value, even according to the valuation register maintained by the Sub-Registrar, was sold at Rs.8.00 lakhs for recovery of Rs.2.00 lakhs. He further submits that the sale proclamation issued in the EP is contrary to Rule 68 or Order XXI CPC. Learned counsel for the 2nd respondent, on the other hand, submits that the sale has become final and, at this stage, the petitioner cannot assail the proceedings. He submits that delivery of possession of the property was already effected and nothing remains to be decided, at this stage. The sequence of events in brief has been furnished in the preceding paragraphs. The discussion in the context of the present CRP can be commenced from the stage, where this Court disposed of CRP No.1555 of 2011, directing that the executing Court shall entertain the application filed by the petitioner, under Rule 90 of Order XXI CPC. It came to be taken up as EA No.392 of 2011. The record discloses that the plea of fraud was raised in EA No.392 of 2011. The petitioner pleaded that according to the register maintained by the office of the Sub-Registrar of that area, the value of the E.P. schedule land is Rs.20.00 lakhs per acre, and that the sale proclamation was prepared completely disregarding the same and that he was not required to furnish the value. The petitioner pleaded that according to the register maintained by the office of the Sub-Registrar of that area, the value of the E.P. schedule land is Rs.20.00 lakhs per acre, and that the sale proclamation was prepared completely disregarding the same and that he was not required to furnish the value. The record discloses that the respondents did not file any counter to the E.A. The executing Court dismissed the same on 15.02.2012, by observing that the costs were not paid and the petitioner was absent. The docket proceedings disclose that on several dates of hearing, the executing Court itself was not prepared to take it up for hearing. Be that as it may, there was absolutely no justification for the executing Court in proceeding to pass an order in the EP on the same day, directing steps for purchase of stamps. The petitioner approached this Court by filing CRP No.1598 of 2012, feeling aggrieved by the dismissal of EA No.392 of 2011. By that time, the sale was not confirmed yet, must less the sale deed was executed. An order was passed by this Court on 30.03.2012, directing stay of delivery of possession, on condition that the entire decretal amount shall be deposited by 25.04.2012. The said condition has been complied with. While hearing CRP No.1598 of 2012, this Court felt that once the possession of the property was delivered, during the pendency of the proceedings, not much can be done on an application to set aside the sale. EA No.168 of 2012 filed by the 2nd respondent, under Rule 98 of Order XXI CPC, was not at all the subject matter of that revision, much less the order passed therein was assailed in it. EA No.168 of 2012 was filed on 21.03.2012. In the affidavit filed in support of the application, it was simply mentioned that the sale certificate was got registered at the office of the Sub-Registrar. The date thereof was not mentioned. Though no application was filed by the 2nd respondent, the executing Court not only issued the sale certificate, but also directed issuance of a cheque for Rs.52,200/- for purchase of non-judicial stamps for engrossing the sale certificate. To verify the steps taken by the executing Court at various stages, this Court summoned the entire record. It reveals that the executing Court did not follow the prescribed procedure. To verify the steps taken by the executing Court at various stages, this Court summoned the entire record. It reveals that the executing Court did not follow the prescribed procedure. For instance, the executing Court passed the following order on 21.03.2012, in EA No.168 of 2012: “Issue notice to R.1. for delivery of the property under Rule 95 to the auction purchaser, by 2.4.2012.” It is pertinent to note that no delivery warrant was issued. In fact, once notice is issued to the judgment debtor at the initial stage itself, the question of issuing delivery warrant, at that stage, does not arise. The EA was directed to be listed on 02.04.2012. In the meanwhile, this Court passed an interim order on 30.03.2012, as under: “Pending further orders, there shall be stay of delivery of the physical possession of the property in question to the auction purchaser subject to the petitioner depositing the entire EP amount before the next date of hearing (25.04.2012), failing which, this interim order stands automatically vacated.” However, a field assistant of the Court, by name, Raghavendra Rao, submitted a report on 28.03.2012, stating that he proceeded to the site and delivered possession of the property in favour of the 2nd respondent, together with the standing crop of maize, which he estimated at Rs.20,000/-. This Court desperately searched for the basis for this, but nothing is available in record. It is interesting to note the order passed by the executing Court on 02.04.2012 in EA No.168 of 2012. It reads as under: “Court notice of R2 returned unserved stating that R2 not residing in the given address. He was residing at Hyderabad. Schedule property delivered to auction purchaser on 22.3.2012. Received telegram on 31.3.2012 in CRP No.2598/12. Pending further orders, there shall be stay of delivery of the physical possession of the property in EA No.392/11 in EP No.134/09 in OS No.139/07, subject to the petitioner depositing the entire EP amount before the next date of hearing, failing which, this interim order stands automatically vacated. Order follows. JDR filed memo enclosing copy of HC order. Delivery of property was given to auction purchaser on 22.3.2012 itself as per amin report. By that time, no stay of HC was communicated. Since matter is stayed, call on 16.4.2012.” The order was written with hand. Order follows. JDR filed memo enclosing copy of HC order. Delivery of property was given to auction purchaser on 22.3.2012 itself as per amin report. By that time, no stay of HC was communicated. Since matter is stayed, call on 16.4.2012.” The order was written with hand. The words “on 22.03.2012” were written with a different pen and the writing is clearly different. Obviously, to support that interpolation, delivery warrant appears to have been fabricated. Once the executing Court has issued notice to the petitioner returnable by 02.04.2012 and posted the matter to that date, and when there was no direction for delivery of possession in the docket order dated 21.03.2012, the very emergence of the delivery warrant, the delivery of property on 22.03.2012 and making a mention of the same through interpolation is a mystery. However, if one takes into account the manner, in which the EP was delat with and the property of value of Rs.30.00 lakhs to Rs.40.00 lakhs was knocked away for Rs.8.00 lakhs by a close relation of the decree holder, the 1st respondent, the order extracted above should not be a surprise. This Court is totally dissatisfied with the manner in which the Executing Court handled the EP, and takes serious exception to this. There are quite good number of precedents, which are to the effect that the sale of the property attached in the EP must be only to the extent which is needed to liquidate the obligation under the decree. This, in fact, is the mandate under Rule 64 of Order XXI CPC. This was followed in breach in this case. Even according to the trial Court, the property fetched Rs.8.5 lakhs. The decretal amount was hardly Rs.2.5 lakhs. Only that portion of the property, which was needed to satisfy the decree, ought to have been sold. However, when the executing Court acted to the signals of the decree holder and the auction purchaser, one cannot expect a better result. While preparing sale proclamation, the certificates of encumbrance were obtained either by the executing Court itself or by the auction purchaser, the 2nd respondent. They reflected the existence of two mortgages. No effort was made to ascertain the value of the property from the office of the Sub-Registrar. While preparing sale proclamation, the certificates of encumbrance were obtained either by the executing Court itself or by the auction purchaser, the 2nd respondent. They reflected the existence of two mortgages. No effort was made to ascertain the value of the property from the office of the Sub-Registrar. Rule 68 of Order XXI CPC, in so far as it applies to the State of Andhra Pradesh, mandates that the sale proclamation shall indicate the values furnished by the decree holder, judgment debtor, as well as by the Court ascertained from the office of the Sub-Registrar. There is a clear non-compliance, in this regard. This Court in Chirravuri Veerabhadra Rao Vs. State Bank of India, E.G. District and others ( 2010 (1) ALD 545 ) held that non-compliance with the requirement under Rule 68 of Order XXI CPC would be fatal to the execution proceedings. In Sai Enterprises Vs. Bhimreddy Laxmaiah and another (2007) 13 SCC 576 ), the Supreme Court emphasized the importance of Rule 68 of Order XXI CPC. This Court cannot remain oblivious to the gross misuse of process of Court by the respondents. As a matter of fact, the learned counsel for the parties were required to address arguments on the entire gamut of the execution proceedings, so that the issue does not resurface with small intervals, even if the order under revision is set aside and the matter is remanded to the executing Court. On hearing the learned counsel for the parties and on perusal of the record, this Court is convinced that serious irregularities and flagrant violations have crept into execution proceedings. The effort of the respondents was to knock away a valuable item of property than to recover the decretal amount. Added to that, the executing Court tried to frustrate the interim order passed by this Court, by recording a surreptitious and patently illegal delivery of possession. Hence, the Civil Revision Petition is allowed, and the order under revision is set aside. It is directed that the sale held on 14.03.2011 shall stand set aside. The property shall be re-delivered to the petitioner forthwith and not later than 31.03.2014. Hence, the Civil Revision Petition is allowed, and the order under revision is set aside. It is directed that the sale held on 14.03.2011 shall stand set aside. The property shall be re-delivered to the petitioner forthwith and not later than 31.03.2014. Since the standing crop existing on 22.03.2012 raised by the petitioner was harvested by the 2nd respondent and continued to enjoy the possession of the land ever since then, the latter shall not be entitled for the amount specified under Rule 89 (1) (a) of Order XXI CPC. The decretal amount deposited by the petitioner shall be taken note of by the executing Court. The learned District Judge shall initiate proceedings and cause enquiry against Mr. Raghavendra Rao, field assistant of the Court, and decide whether there existed any order of the executing Court, enabling the field assistant to deliver possession of the property. The learned District Judge also shall verify the EA No.168 of 2012 and find out, whether there existed any order directing delivery of possession of the property, before the Court recorded the delivery on 02.04.2012. The original record, particularly, the one in EA No.168 of 2012 shall be preserved for verification, if necessary, as to whether the words “on 22.03.2012” were written originally or interpolated subsequently. He shall ascertain the views of the Learned Presiding Officer of the Court, in this behalf. The learned District Judge shall forward his tentative observations to the High Court for its consideration. There shall be no order as to costs. The Miscellaneous Petitions filed in the revision shall stand disposed of.