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2020 DIGILAW 96 (AP)

Patcha Subrahmanyam v. Chenna Krishna Rao

2020-02-05

R.RAGHUNANDAN RAO

body2020
JUDGMENT : R Raghunandan Rao, J. This appeal is directed against the decree and order dated 07.06.2016, passed in E.A.No.235 of 2016 in E.P.No.249 of 2014 in O.S.No.319 of 2011, by the Additional Senior Civil Judge, Eluru. 2. The facts, which are given raise to this appeal, are that one Thota Uma Maheswara Rao was the owner of 93 sq. Yards of land in Rs.No.1936/2002 of Satrampadu village, Vatluru Sub-Division, West Godavari District (hereinafter referred to as 'the schedule property'). Sri Chenna Krishna Rao, the 1st respondent in the appeal filed O.S.No.319 of 2011 before the Additional Senior Civil Judge, Eluru against Sri Thota Uma Maheswara Rao, who has since passed away and is now represented by respondents 3 to 5 in the present appeal, for recovery of money. The 1st respondent/herein had also filed I.A.No.154 of 2011 for obtaining attachment before judgment in respect of the schedule property and the same was allowed on 13.09.2011. Subsequently, the suit was decreed on 10.02.2012. Thereafter, E.P.No.249 of 2014 was filed by the 1st respondent herein for recovery of Rs.7,11,734/- along with costs of Rs.17,547/- and for sale of the schedule property for recovery of decretal amount and costs. 3. After the filing of the said E.P., the appellant herein filed E.A.No.235 of 2016 claiming that he was the owner of the suit schedule property. The claim of the appellant was that he had advanced a loan of Rs.2,00,000/- to Sri Thota Uma Maheswara Rao, (the deceased 1st respondent herein) and Sri Thota Uma Maheswara Rao had created a mortgage over the schedule property by depositing title deeds on 11.10.2004. As Sri Thota Uma Maheswara Rao did not repay the loan taken by him, the appellant claims to have issued a legal notice dated 30.09.2011, despite which no payments were made. Thereupon, the appellant filed O.S.No.498 of 2011 on 24.10.2011 in the Court of Principal Senior Civil Judge, Eluru and the same was decreed by way of a preliminary decree dated 13.06.2012 decreeing the suit for Rs.5,36,000/- with costs and subsequent interest at 6% per annum with principal amount of Rs.2,00,000/- from the date of suit till the date of realisation and time for redemption of four months was granted. 4. 4. It is the case of the appellant herein that in view of the said preliminary decree Sri Thota Uma Maheswara Rao (the deceased 1st respondent herein) had executed a registered sale deed dated 26.08.2014 and the appellant had become the owner of the schedule property. 5. The 1st respondent herein resisted the said claim on the ground that the order of attachment before judgment in favour of the 1st respondent was issued on 13.09.2011 whereas the sale deed is said to have been executed only on 28.06.2014 and in view of the same, the sale deed itself is highly suspect and in any event not binding on the 1st respondent as such. In view of the said submission, the 1st respondent sought dismissal of E.A.No.235 of 2016. 6. It appears that the learned executing Judge heard the arguments on both sides and dismissed the said E.A.No.235 of 2016 on 07.06.2016 only on the basis of the arguments advanced by both sides and without any enquiry. 7. Aggrieved by the said order dated 07.06.2016, the present appeal has been filed by the appellant. 8. The primary contention of the appellant is that in every claim petition made in execution proceedings under Order XXI Rule 58 read with Section 47 of C.P.C.,an enquiry is required. Learned counsel for the appellant submits that this would mean that the issues raised in the claim application would require a formal trial including letting in evidence by way of oral depositions and marking of documents as exhibits. 9. The claim of the appellant is that since this procedure has not been followed, there is a clear violation of the provisions of Order XXI Rule 58 C.P.C., and as such, the order dated 07.06.2016 requires to be set aside and the matter may be remanded to the executing Court for a proper enquiry in the matter before any decision is taken on the application. 10. The learned counsel for the respondent submitted that since the issues before the executing Court were straight forward in nature and did not require any elaborate evidence, the procedure adopted by the learned executing Judge is proper and does not require any interference. 11. 10. The learned counsel for the respondent submitted that since the issues before the executing Court were straight forward in nature and did not require any elaborate evidence, the procedure adopted by the learned executing Judge is proper and does not require any interference. 11. In reply, the learned counsel for the appellant submits that the question whether the mortgage of the property by the deceased 1st respondent is in the year 2004 itself and the subsequent events leading to the execution of the sale deed would have to be taken into account and the objection of the 1st respondent herein on the genuineness and validity of the sale deed dated 26.8.2014, would require to be examined in depth and such facts can be determined by the executing Court only after a proper enquiry is conducted, in which the witnesses would be cross-examined and the documents would be examined in a proper manner. 12. The provisions of Order XXI Rule 58 C.P.C would be applicable to the present case. The said Rule has been considered by this Hon'ble Court in the case of Muvvala Ramachandra Rao and anr. V. Kuricheti Ravi and anr., (1999) 3 ALD 101 . Paras 9 to 12 of the said judgment are relevant and are extracted hereunder: "9. The executing Court is competent to dismiss the objection in limine where it considers that the objection or claim is designedly or unnecessarily delayed, exercising its powers under Clause (b) of proviso to sub-rule (1) of Rule 58 of Order 21 of the Code of Civil Procedure and on that count, refuse to investigate the claim; but if the Court does not exercise the said power, at its inception, in terms of the above provisions, then, under sub-rule (2) of Order 21 Rule 58 of the Code, the executing Court is bound to decide all questions including the questions relating to right, title or interest in the property attached arising between the parties to the proceeding and relevant to the adjudication of the claim or objection after giving opportunity of enquiry to the rival parties to the objection. 10. In the case of K. Venkarayappa v. Ellen Industries, (1985) AIR A.P. 261, a learned single Judge of this Court has held that the Legislature intended that it is a mandatory duty cast on the Court to hold an enquiry. 10. In the case of K. Venkarayappa v. Ellen Industries, (1985) AIR A.P. 261, a learned single Judge of this Court has held that the Legislature intended that it is a mandatory duty cast on the Court to hold an enquiry. The enquiry thereby posits that an opportunity to be given to the parties to adduce all necessary evidence in support of the claim or to resist such a claim by the opposite party and thereafter to give finality to the objection by that court, subject to a right of appeal provided under sub-rule (4) thereof treating the order thereunder as a decree. The order thus becomes conclusive. Thereby the Legislature has manifested that holding an enquiry in adjudicating the right, title and interest of the objector in dealing with the claim or objection is mandatory and the order passed thereon shall be conclusive. 11. As noted above, it does not appear that the executing Court had given opportunity to both the sides to lead evidence in support of their rival claims. On perusal of Para 5 of the order passed by the executing Court, it appears that the objection has been dismissed on the ground that the appellants had not taken any steps for raising the attachment before the disputed property was put to sale though they had notice about the order of attachment before Judgment before they had instituted the suit in OS 100 of 1995 against both the respondents on the file of the Additional Subordinate Judge, Tenali, for the relief of specific performance, that the agreement of sale in question was not genuine and no reliance can be placed on it, and that the petition has been filed only with a view to drag the execution proceedings. The appellate Court has found in Paras 10 and 11 of its judgment that the agreement of sale in question is not genuine. Had it been genuine, the appellants would have definitely obtained stay order from the concerned Court in the civil suit OS 100 of 1995." 12. From what is stated above, it does not appear that the executing Court had dismissed the objection under Clause (b) of proviso to sub-rule (1) of Rule 58 of Order 21 of the Code, that is to say only on the ground that the claim was designedly or unnecessarily delayed. From what is stated above, it does not appear that the executing Court had dismissed the objection under Clause (b) of proviso to sub-rule (1) of Rule 58 of Order 21 of the Code, that is to say only on the ground that the claim was designedly or unnecessarily delayed. Because a finding has been recorded that the agreement of sale in question is not genuine, the order passed must be held to have been passed under sub-rule (2) of Order 21 Rule 58 of the Code of Civil Procedure without holding an enquiry and without giving opportunity to the parties to the objection, but it has straightaway passed the order on merits which, on the face of it, is contrary to the mandatory provisions stated above. Under these circumstances, the impugned order suffers from material irregularity in exercise of its jurisdiction." 13. In the present case also there is no finding by the learned executing Judge that this is a matter which requires to be dismissed in limini on the ground that the objection or claim is designedly or unnecessarily delayed. As the executing Court went on the basis of the claims made before it, the procedure adopted by the Court would not be in consonance with the provisions of Order XXI Rule 58 (2) C.P.C., as enunciated by this Hon'ble Court in the above referred judgment. 14. In view of the above, the appeal is allowed and the order dated 07.06.2016 passed in E.A.No.235 of 2016 in E.P.No.249 of 2014 in O.S.No.319 of 2011 is set aside and the matter is remanded to the Executing Court with a direction to hold an enquiry and after affording reasonable opportunity to both the parties to the claim petition, dispose of the same according to law, expeditiously preferably within three months from the date of receipt of this order. However, there shall be no order as to costs. 15. As a sequel, pending miscellaneous petitions, if any, shall stand closed.