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2021 DIGILAW 418 (TS)

I. Ramulu @ Chevella Veeraiah @ Veeresham, S/o. Late I. Balaiah v. N. V. N. Constructions Private Limited, represented by its Director, K. Naveen Kumar, S/o. Late Sri K. Krishna Rao

2021-12-17

A.RAJASHEKER REDDY

body2021
ORDER: 1. This Civil Revision Petition is filed against order dated 19.07.2021 in E.P.No.4 of 2020 in O.S.No.1043 of 2008 wherein and whereby the Court below allowed the E.P observing that the petitioner/defendant No.23/sole party, who filed the EP, was entitled to obtain a registered sale in its favour in terms of the Award dated 14.10.2015 in O.S.No.1043 of 2008 passed before the Lok Adalath. 2. Brief facts, which lead to filing of this Civil Revision Petiton, are as follows: Originally Intivenka Balaiah was the absolute owner and pattadar of the plaint schedule property total admeasuring Acs.17.12 guntas situated in Sy.Nos.1003, 1004, 1005 and 1006 of Kukatpally Village, Balanagar Mandal, R.R.District, having purchased the same under registered sale deeds on 02.06.1952 and 12.09.1952 bearing document No.3201/1952. He died in the year 1977 leaving behind four sons and two daughters. However, after his death, the suit lands were mutated in the names of four sons as pattadars and they have also filed declaration in respect of the suit lands before the Special Officer & Competent Authority under Section 6(1) of the Urban Land (Ceiling& Regulation) Act, 1976, who passed final order on 15.02.2006 under Section 8 (4) of the Act vide proceedings in file No.F1/3912/2005 determining the total area of the suit land as 70,009.96 sq.meters and out of which after allowing the declarants/land holders to retain an extent of 1,000 sq.meters under section 4(1)(b) as retainable area, declared the entire balance extent admeasuring 69,009.56 sq.meters as surplus vacant land. Thereafter, the Government of A.P issued notifications under Sections 10(1) and 10(3) proceedings by publishing the same in the official Gazette on 01.04.2006 and 19.04.2006 respectively declaring that the land has vested with the State free from all encumbrances and also issued notice under Section 10(5) on 12.09.2006 in respect of the surplus land. 3. Subsequently, the four sons of said I. Balaiah i.e., I.Laxmaiah and others approached the defendant No.23 for sale of the suit land for sale consideration of Rs.12.00 Crores and also requested to deposit an amount of Rs.9,27,49,903/- with the competent authority, which was paid by the defendant No.23. Thereafter, said Laxmaiah and three others executed registered Agreement of Sale-cum-Irrevocable General Power of Attorney in favour of defendant No.23 vide AGPA No.16132 of 2006 dated 07.08.2006. Thereafter, said Laxmaiah and three others executed registered Agreement of Sale-cum-Irrevocable General Power of Attorney in favour of defendant No.23 vide AGPA No.16132 of 2006 dated 07.08.2006. Thereafter, the defendant No.23 pursued the matter with the Government and successful in obtaining exemption of entire surplus land vide G.O.Ms.No.469, dated 26.03.2008. Even though brother of said Intivenka Balaiah, by name Intivenka Yellaiah, had no interest in the suit property, after his demise, the defendant No.23 also got executed ratification deed dated 17.08.2006 vide document No.16855/2006 from the legal heirs of Intivenka Yellaiah i.e., defendant nos.18, 20, 22, 15, 16 and 17, ratifying the AGPA No.16132 of 2006. 4. While things stood thus, the defendant No.23 being the purchaser of entire suit land Acs.17.12 guntas in Sy.Nos.1002 to 1006 of Kukatpally village under AGPA No.16132/2006, entered into development agreement in respect of Acs.13.137 guntas in Sy.Nos.1003 to 1006 with the defendant No.24 under registered agreement-cum-GPA dated 28.05.2008 vide document No.4358/2008. 5. After the death of eldest son of late Intevenka Balaiah by name Intivenka Laxmaiah, his only son by name I.Ramulaiah (defendant No.4) joined the execution of said Development agreement along with three surviving brothers of his late father and their sons as well as the other descendants of late I.Yellaiah besides defendant No.23 in the execution of said Development agreement-cum-GPA in favour of defendant No.24. After the death of elder daughter of I.Balaiah namely Narsamma, her four sons and one daughter namely G.Yadagiri, G.Kumar (Defendant No.5), G.Srinu (Defendant No.6), G.Raju (Defendant No.7) and P.Swaroopa (defendant no.8) and after the expiry of G.Yadagiri, his wife by name Shivarajamma (defendant No.9) and only son by name G.Narsimha Rao (defendant No.10) ratified the original sale of the suit lands to D23 company by executing ratification deed dated 17.07.2008 vide document No.5260/2008 and also ratified the development agreement No.4358/2008 executed by D23 and others in favour of D24 company by executing ratification deed No.5261/2008, dated 17.07.2008. 6. Thereafter, one Smt.Buchamma, who is younger daughter of late Intivenka Balaiah filed the suit No.1043 of 2008 against her three surviving brothers i.e., D1 to D3, only son of deceased brother late I.Laxmaiah (D4) and legal heirs of elder sister Smt.Narsamma (D5 to 8) for partition of the suit lands bearing Sy.Nos.1002 to 1006, situated at Kukatpally village claiming 1/6th undivided share in the suit lands. However, the said suit ended in compromise before the Lok Adalat, which passed an Award on 14.10.2015 in terms of Memorandum of Compromise dated 14.10.2015. In pursuance thereto, the D-23 filed EP No.4 of 2020 in O.S.NO.1043 of 2008 for execution of the Lok Adalat Award dated 14.10.2015. The executing Court passed impugned order on 19.07.2021. Aggrieved by the same, present Civil Revision Petition is filed. 7. Heard Sri Vedula Venkata Ramana, learned Senior Counsel for the petitioners/judgment debtors 1, 3, 10 to 13 and Sri Zeeshan Adnan Mahmood, learned counsel for the respondent/decree holder. 8. Sri Vedula Venkata Ramana, learned Senior Counsel submits that neither the prayer in the suit i.e., OS No.1043 of 2008 nor award of the Lok Adalath contains any decree for specific performance, as such, the question of execution of registered sale deed does not arise. E.P.No.4 of 2020 is filed in respect of Award of Lok Adalath dated 14.10.2015, i.e., beyond the period of two years from the date of decree, no notice is served on the judgment debtors. Since such notices are not served on the judgment debtors, the impugned order is liable to be set aside on this ground alone. He further submits that there is no decree for execution of a sale deed in favour of the respondent, as such, the order impugned is unsustainable under law. He further submits that even though some of the respondents have expired, but without bringing the legal representatives of such deceased on record, the executing Court erroneously passed the impugned order. He further submits that since the suit filed by the plaintiff is for partition, only a preliminary decree can be passed but not Award and since the suit is not for specific performance, no sale deed can be executed. 9. On the other hand, Sri Zeeshan Adnan Mahmood, learned counsel for the respondent/decree holder while denying the submissions of the learned Senior Counsel submits that there is no restriction on the power of the Lok Adalath to pass an Award based on the compromise arrived at between the parties and that notice was duly served on the revision petitioners and the same were represented by their respective counsels. He submits that the revision petitioners cannot challenge the Award of Lok Adalat in this civil revision petition, as the same is nothing but a decree passed in a civil suit and sought for dismissal of the revision. 10. A perusal of the impugned order and material on record goes to show that the revision petitioners, who are judgment debtors 1, 3, 10 and 13 have rendered their thumb impressions, whereas judgment debtors 11 and 12 have signed in the Memorandum of Compromise, as such, they cannot deny the averments of the Memorandum of Compromise. The Clauses 10 and 11 of the said Memorandum of Compromise reads as follows: “10. The Plaintiff and Defendants 2 to 22 hereby declare that they have no further claim or claims of whatever nature against Defendant No.23 and it’s nominees transferees in respect of suit lands, which have been sold under above referred AGPA, which is followed by Ratification Deeds and Sale Deeds. They further declare that they ceased to have any subsisting right of whatever nature with the title and possession of the suit lands. Therefore, the Plaintiff and Defendants 2 to 22 hereby jointly and severally further declare that the Defendant No.23 and it’s nominee transferees are entitled to deal with the suit lands in any manner they desire without any objection or claim of whatsoever nature either from Plaintiff or Defendants 2 to 22 or anybody claiming through them. In case any claim is made at any time in future contrary to this declaration, the same shall be null and void. 11. The Plaintiff and Defendants 2 to 22 hereby assure and undertake to execute all such further documents, deeds, conveyances etc., in favour of Defendant Nos.23 to 25 and their nominee or nominees as and when the Defendants 23 to 25 desires or demands them to ensure proper and valid conveyance of title unto them or their nominees without demanding any further consideration from them.” The aforesaid clauses makes it crystal clear that the plaintiff and the defendants 2 to 22 have no rights whatsoever in respect of suit schedule property and the same vests in favour of defendant No.23 and they assured and undertook to execute all such deeds and conveyances in favour of defendants 23 to 25 as and when required. Therefore, the contention of the learned Senior Counsel for the petitioners that the Lok Adalat award cannot be executed in Execution Petition and that too for execution of sale deed in favour of defendant No.23, does not merit consideration. 11. The next contention raised by the learned Senior Counsel for the petitioners is that no notices are served to the revision petitioners in respect of E.P, as such, the order impugned in the revision petition is liable to be set aside on this ground alone. In order to answer the said contention, it is necessary to verify the docket proceedings of the Court below in E.P. 12. It is an admitted fact that the Lok Adalat passed an Award on 14.10.2015, which has attained finality as the same was not challenged by either of the parties to the Memorandum of Compromise so far. The Execution Petition is filed by the defendant No.23 on 10.01.2020, i.e., after almost six years of passing of the Award. Since the E.P was filed beyond two years, the Court below ordered notices to the revision petitioners on 26.03.2020. On 07.01.2021, it was recorded in the docket that notices to Defendants 1 to 4 were served personally. On 26.02.2021 it was recorded in the docket that notices to JD-1 & 2 served through son, JD-3 was served through brother, JD-10 was served through brother, JDs 11 & 12 were served personally and JD 13 was served through brother. It was also recorded that JDR Nos.1 to 3, 10 to 13 are absent and service held sufficient and for appearance of JDRs. 1 to 3 & 10 to 13 called on 10.03.2021. 13. On 10.03.2021, the JDRs 1 to 3 and 10 to 13 were present. For counters of R2, R3 and R10 to R13, the matter was posted to 07.04.2021. On 07.04.2021, the matter was adjourned to 30.04.2021 for counters of R2, R3 & R10 to R13. On 30.04.2021, in view of circular of this Court vide ROC No.394/SO/2020, the case was adjourned to 01.06.2021 and on 01.06.2021 also, in view of the said circular, the case was adjourned to 21.06.2021. 14. On 21.06.2021, it was recorded that counsel for petitioner in EP is reporting ready and urgency. No counters are filed for contesting JDRs and they are not represented. 14. On 21.06.2021, it was recorded that counsel for petitioner in EP is reporting ready and urgency. No counters are filed for contesting JDRs and they are not represented. However, the case was again called on 30.06.2021 but on this date also the respondents were not ready, therefore the matter was again adjourned to 08.07.2021 for counter, as a last chance. 15. On 08.07.2021, the respondents were called absent. Matter was called thrice and no representation for respondents. No counter affidavit is filed. Sufficient time was granted for contesting respondents for filing counter. Hence, right to file counter is forfeited. The matter was adjourned to 09.07.2021 at the request of counsel for petitioner/D23. Again, the matter was directed to be listed on 09.07.2021 and again adjourned to 14.07.2021. 16. On 14.07.2021, it was recorded in the docket that counsel for DHR is present and ready for hearing. J.DR No.2 is reported to be no more and Death Certificate of J.DR No.2 is filed which shows that he died on 21.04.2021. Memo filed with Death Certificate of J.Dr.No.2, the Court below has considered the said aspect recording the Memo, the same cannot be faulted. Adjournment Petition is returned as case is coming up for hearing and right to file counter was forfeited on 08.07.2021. However, the case was called on 16.07.2021 for hearing. From 16.07.2021, the matter was directed to be listed on 19.07.2021, on which date, the impugned order was passed directing execution of registered sale deed in favour of the respondent No.1/Decree Holder-D-23. 17. In view of above docket proceedings of the Court below in E.P.No.4 of 2020, it is apparently clear that notices were duly served on the revision petitioners and they were represented through their counsel and when counters have not been filed, the right to file counter was forfeited by the executing court. As such, the contention of the learned Senior Counsel that no notices were issued to the revision petitioners, cannot be accepted. 18. As such, the contention of the learned Senior Counsel that no notices were issued to the revision petitioners, cannot be accepted. 18. It is settled principle of law that an Award of Lok Adalat is a final decree and binding on the parties therein, as per Section 21(2) of the Legal Services Authority Act, which reads as follows: “(2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the Award.” Since all the parties to the Memorandum of Compromise signed/affixed thumb signatures, they cannot turn around and challenge the said Award of Lok Adalat either directly by way of an appeal or indirectly by way of this Civil Revision Petition. There cannot be a collateral attack to an Award/Decree. 19. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attach or in incidental proceedings. (See 2004 (1) SCC 287 page 291). 20. It is pertinent to note here that the Lok Adalat has the power to arrive at a compromise/settlement in respect of any case pending before or any matter which is falling within its jurisdiction and is not brought before any Court for which Lok Adalat is organized. Sub-section 5 of Section 19 reads as follows: “A lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of: (i) Any case pending before or (ii) Any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organized.” The ratio that decision was that the "award" of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by the parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat. In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court. In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court. The Act does not make out any such distinction between the reference made by a civil court and criminal court. There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various Courts (both civil and criminal), Tribunals, Family court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of similar nature. (See K.N.Govindan Kutty Menon v. C.D.Shaji (2012) 2 SCC 51 ). 21. In P.T.Thomas v. Thomas Job (2005) 6SCC 478), the Hon’ble Supreme Court has dealt with the similar issue and directed to execute registered sale deed in favour of respondent. It is a case where suit was filed for mandatory injunction for removal of the building and to surrender vacant possession was decreed. Aggrieved by the same, the defendant therein preferred appeal, which was referred to Lok Adalat for compromise and an Award was passed by the Lok Adalat. In the Award it was specifically agreed to execute a sale deed in favour of the defendant therein on receipt of Rs.9.5 lakhs as sale consideration. The Hon’ble Supreme Court set aside the order of the High Court and upheld the compromise Award and observed that attempt of the Court should be to give life and enforceability to the compromise Award and not to defeat it on technical grounds and ultimately, directed the plaintiff therein to execute sale deed in favour of the defendant therein. In view of the above settled principle of law, the contention of the learned Senior Counsel that in a suit for partition, there cannot be any execution of sale deed without passing preliminary decree and final decree between the parties, does not merit consideration. 22. It is finally argued by the learned Senior Counsel that the executing Court has no jurisdiction to entertain the EP and pass the impugned order, as such, the same is liable to be set aside. The said contention is not correct for the reason that the said ground has been taken for the first time before this Court. 22. It is finally argued by the learned Senior Counsel that the executing Court has no jurisdiction to entertain the EP and pass the impugned order, as such, the same is liable to be set aside. The said contention is not correct for the reason that the said ground has been taken for the first time before this Court. All through the proceedings in E.P before the Executing Court, the revision petitioners participated and appeared through their counsel, after receipt of notice and on their failure to file counter, their right to file counter was forfeited. The territorial jurisdiction ground has to be raised at the first instance in E.P, but not at this stage. Sub-section (3) of Section 21 of CPC provides that no objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. 23. Though it is vehemently argued by the learned Senior Counsel for the petitioners that no procedure has been followed by the Executing Court while passing the impugned order, nothing is brought to the notice of this Court about which provision of law has not been followed by the Executing Court while passing the impugned order. Thereby, the petitioners miserably failed in their attempts to set aside the impugned order passed by the Executing Court. 24. In view of above facts and circumstances, the Civil Revision Petition is liable to be dismissed and accordingly, the same is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, shall stands closed.