Research › Search › Judgment

Telangana High Court · body

2019 DIGILAW 236 (TS)

K. Satya Reddy v. Anasuya Devi

2019-06-18

M.S.RAMACHANDRA RAO

body2019
ORDER : M.S. Ramachandra Rao, J. 1. IA No. 1 of 2018 in CRP No. 2508 of 2017 is filed by petitioners in OS No. 97 of 1983 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad to review the order dated 24.7.2017 in CRP No. 2508 of 2017. 2. It is not in dispute that the suit was decreed on 9.7.1997. Thereafter petitioners filed IA No. 372 of 1998 for passing of final decree and for appointment of Commissioner and IA No. 373 of 1998 for determination of mesne profits. 3. In the meantime, defendant Nos. 1 and 2 filed CCCA No. 180 of 1997 before this Court, which was dismissed on 3.10.2003 and the said judgment was also confirmed in SLP (Civil) No. 11371/2003 preferred by defendant Nos. 1 and 2. 4. Thereafter IA No. 373 of 1998 wherein the petitioners sought mesne profits was allowed on 23.4.2004. 5. Defendant Nos. 1 and 2 filed CCCA No. 193 of 2005 before this Court challenging the said order, and on 27.9.2005 in CCCAMP No. 646 of 2005, this Court granted interim stay subject to deposit of 50% of the mesne profits within 8 weeks and on such deposit, petitioners were permitted to withdraw the same. 6. Later, on 19.12.2005, the said order was clarified and, it was stated that if the appellants in CCCA. did not comply with the order dated 27.9.2005, the petitioners are at liberty to proceed with execution. 7. On 10.8.2005, petitioners filed EP No. 1 of 2005 for realization of the mesne profits by attachment and sale of immoveable properties belonging to defendant Nos. 1 and 2. 8. It is important to note that 'J' schedule property in the suit was not the subject-matter of the said E.P. 9. Later final decree was passed on 27.11.2008 in IA No. 372 of 1998. 10. Later there was a compromise settlement wherein the petitioners gave up mesne profits and compromise memo was filed in IA No. 373 of 1998, on the basis of the same, EP No. 1 of 2005 was closed on 23.6.2009. 11. However, when defendant Nos. 1 and 2 did not fulfill the conditions of compromise, petitioners filed EA No. 3 of 2017 in EP No. 1 of 2005 to revive the E.P., which had been closed on 23.6.2009. 12. On 9.4.2012, respondent Nos. 11. However, when defendant Nos. 1 and 2 did not fulfill the conditions of compromise, petitioners filed EA No. 3 of 2017 in EP No. 1 of 2005 to revive the E.P., which had been closed on 23.6.2009. 12. On 9.4.2012, respondent Nos. 1 to 3 in C.R.P. (third party claimants) filed IA No. 225 of 2015 in OS No. 97 of 1983 under Order XXI Rule 97 and 99 C.P.C. claiming Item No. 4 of 'J' schedule property. 13. Petitioners then filed IA No. 99 of 2016 to dismiss IA No. 225 of 2015 in OS No. 97 of 1983, 14. On 3.5.2017, IA No. 99 of 2016 was dismissed by the Trial Court. 15. Petitioners then filed CRP No. 2508 of 2017 before this Court on 24.7.2017. In the said C.R.P., it was the contention of the petitioners that application under Order XXI Rule 97 C.P.C. filed by the third parties, who are respondent Nos. 1 to 3 in the revision, was not maintainable and that on the original side in the suit they cannot be filed and they can only be filed in Execution proceedings. 16. This Court, in its order dated 24.7.2017 while dismissing the said C.R.P. noted that as on the date of its order, EP No. 1 of 2005 was still closed and EA No. 3 of 2017 to revive it was still pending before the Executing Court. It went on to say that respondent Nos. 1 to 3 in C.R.P./third party claimants can file an application in EP No. 1 of 2005 raising objection, resistance or obstruction to delivery of possession of the property under Order XXI Rules 97, 98 and 101 C.P.C. and opportunity was given to the petitioners to file appropriate application before the original Court where the LA. is pending, to file application for conversion of LA. into E.A. 17. Taking cue from this order, IA No. 398 of 2017 was filed by respondent Nos. 1 to 3/claim petitioners to convert the application of petitioners i.e., IA No. 225 of 2015 as E.A. in EP No. 1 of 2005. 18. is pending, to file application for conversion of LA. into E.A. 17. Taking cue from this order, IA No. 398 of 2017 was filed by respondent Nos. 1 to 3/claim petitioners to convert the application of petitioners i.e., IA No. 225 of 2015 as E.A. in EP No. 1 of 2005. 18. In view of the orders passed by this Court on 24.7.2017 in CRP No. 2508 of 2017, the Court below by order dated 8.8.2018 allowed IA No. 398 of 2017 and directed the Office to give number as 'E.A.' to IA No. 225 of 2015 in EP No. 1 of 2005 though it noted that EP No. 1 of 2005 stands closed and is not yet restored and is not pending as on date. 19. Assailing the said order dated 8.8.2018 in IA No. 398 of 2017, petitioners filed CRP No. 5057 of 2018. 20. Heard Sri J. Prabhakar, learned Counsel for petitioners and Sri Kishore Rai, learned Counsel for respondent Nos. 1 to 3/claim petitioners. 21. No doubt there is a delay in filing review petition IA No. 1 of 2018 in CRP No. 2508 of 2017, but on 24.10.2018, while considering the same, this Court observed that there is no limitation for filing a revision under Article 227 of the Constitution of India against an order, but however directed the Registry to number the petition subject to objection as it can be considered at an appropriate stage during hearing. It also granted stay of further proceedings in the suit. 22. Learned Counsel for petitioners contended that when EP No. 1 of 2005 is not yet restored to the file of the Executing Court and EA No. 3 of 2007 to revive the said E.P. is still pending, this Court as well as the Court below cannot direct the application IA No. 225 of 2015 filed under Order XXI Rule 97 C.P.C. by respondent Nos. 1 to 3/claimant petitioners to be treated as E.A. in EP No. 1 of 2005. He also contended mat in EP No. 1 of 2005, 'J' schedule property is not the subject-matter at all and since the claim-petitioners are only interested in Item No. 4 of 'J' schedule property, it would be incongruous to permit them to file a claim petition in EP No. 1 of 2005. 23. Learned Counsel for respondent Nos. He also contended mat in EP No. 1 of 2005, 'J' schedule property is not the subject-matter at all and since the claim-petitioners are only interested in Item No. 4 of 'J' schedule property, it would be incongruous to permit them to file a claim petition in EP No. 1 of 2005. 23. Learned Counsel for respondent Nos. 1 to 3 firstly contended that the delay in filing the review petition is substantial and the said delay cannot be condoned. 24. The review petition is no doubt filed on 24.8.2018 seeking review of the order passed on 24.7.2017, but the point raised in the review petition has substance, because even the learned Counsel for respondent Nos. 1 to 3 does not deny that in EP No. 1 of 2005, 'J' schedule property is not the subject-matter and as on the date of the order passed on 24.7.2017 in CRP No. 2508 of 2017, EP No. 1 of 2005 had not yet been restored. 25. There is a glaring error apparent on the face of record in the order passed on 24.7.2017 in CRP No. 2508 of 2017 inasmuch as it directed the application IA No. 225 of 2015 filed in the suit under Order XXI Rule 97 C.P.C. which is per se not maintainable in the suit, and could have only been invoked in the Execution proceedings, to be converted into E.A. in a non-existent EP No. 1 of 2005, and also when admittedly in EP No. 1 of 2005, 'J' schedule property is not the subject-matter in which the claim petitioners/respondent Nos. 1 to 3 are interested. 26. In these circumstances, I am of the opinion that though there is some delay in seeking review of the order passed in CRP No. 2508 of 2017, considering the glaring error apparent on the face of record in the said order, the said delay is liable to be condoned. 27. Once glaring error apparent on the face of record is made out by the review petitioners, the order dated 24.7.2017 in CRP No. 2508 of 2017 is liable to be reviewed and set aside. 28. Accordingly, IA No. 1 of 2018 in CRP No. 2508 of 2017 is allowed. 29. 27. Once glaring error apparent on the face of record is made out by the review petitioners, the order dated 24.7.2017 in CRP No. 2508 of 2017 is liable to be reviewed and set aside. 28. Accordingly, IA No. 1 of 2018 in CRP No. 2508 of 2017 is allowed. 29. Consequently, CRP No. 5057 of 2018 is also allowed and the order dated 8.8.2018 in IA No. 398 of 2017 in IA No. 225 of 2015 in OS No. 97 of 1983 is also set aside and IA No. 398 of 2017 is dismissed. No costs. 30. As a sequel, the miscellaneous petitions, if any pending, shall stand closed.