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2022 DIGILAW 22 (AP)

Palla Chenchu Harikala v. Bysani Satish

2022-01-05

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT : K. MANMADHA RAO, J. 1. The present appeal is filed against the Order and Decree dated 09.12.2019 in E.A. No. 32 of 2017 in E.P. No. 50 of 2013 in O.S. No. 98 of 2010 on the file of the learned I Additional District and Sessions Judge, Nellore (hereinafter referred to as the “Court below”). 2. The parties shall hereinafter be referred to as appellant/claim petitioner and respondents 1 to 4/D. Hrs and respondents 5 and 6/J. Drs 2 and 3. 3. The facts in brief are thus: O.S. No. 98 of 2010 has been filed by the respondents 1 to 4 herein against one Pallala Bujjamma and respondents 5 and 6 herein for realization of the suit amount by redemption of mortgage passing a preliminary decree. The said suit was preliminarily decreed on 13.11.2011. Thereafter final decree was passed on 05.08.2013. As the defendants failed to comply the preliminary decree and final decree, the plaintiffs filed E.P. No. 50 of 2013 to sell the suit schedule property and realize the E.P. amount. In the pending E.P. the appellant herein i.e. third party filed E.A. No. 32 of 2017 under Order XXI, Rule 58, r/w Section 151 of C.P.C. The executing Court by the impugned order dismissed E.A. No. 32 of 2017. 4. E.A. No. 32 of 2017 has been filed by the appellant herein inter-alia stating that the claim petitioner is the daughter of late Arjunaiah @ Chenchaiah and 1st J. Dr (Bujjamma) and the sister of the respondents no. 2 and 3, who are the respondents no. 5 and 6/J. Drs before the Court below. The 1st J. Dr i.e. late Pallala Bujjamma died during pendency of E.P. No. 50 of 2013. During the life time of the father of the appellant, Pallala Arjunaiah @ Chenchaiah, he has purchased certain landed properties including the E.P. schedule property and died intestate on 15.12.2000 leaving behind him, his wife/1st J. Dr and his daughters i.e. the appellant and 3rd J. Dr and his son/2nd J. Dr as the legal heirs. Thus, by way of succession, the appellant and J. Drs 1 to 3 became the absolute owners of the estate of the deceased. As such, the appellant is entitled to 1/4th share in the properties of the deceased including the E.P. schedule property. Thus, by way of succession, the appellant and J. Drs 1 to 3 became the absolute owners of the estate of the deceased. As such, the appellant is entitled to 1/4th share in the properties of the deceased including the E.P. schedule property. The appellant filed a suit in O.S. No. 199 of 2009 on the file of the court of the I Additional Senior Civil Judge, Nellore against the respondents/J. Drs herein and others for partition, declaration and delivery of possession of her undivided share in joint family properties. The E.P. schedule property was shown as Item No. 2 in the plaint schedule in O.S. No. 199 of 2009. 5. J. Drs 1 to 3 without consent and knowledge of the appellant and concealing the claim of the appellant, as one of the members in the joint family, mortgaged the E.P. schedule property to the D. Hrs. The appellant is having 1/4th share in the E.P. schedule property and the suit for partition is also pending. Neither the J. Drs have right to mortgage the E.P. schedule property in favour of the D. Hrs/plaintiffs nor the D. Hrs/plaintiffs have right to sell the E.P. schedule property in public auction without dividing the share of the appellant pending disposal of the suit for partition. The appellant filed E.A. No. 1 of 2015 under Section 47 and 151 of C.P.C. and the same was dismissed, inspite of bringing to the notice of the executing court that the E.P. schedule property is shown as Item No. 2 in the plaint schedule in O.S. No. 199 of 2009 and that the appellant is not a party to the suit in O.S. No. 98 of 2010 and the execution proceedings are pending. The said suit in O.S. No. 199 of 2009 was decreed on 25.01.2018 by allotting the Item No. 2 and 3 of the suit schedule property to the appellant/claim petitioner and allotting the Item No. 1 to the share of the defendants 1 to 3 therein/J. Drs herein and the said defendants are directed to handover the possession of Item No. 2 and 3 to the appellant/plaintiff within two months etc. In view of the above decree, it is made clear that the appellant, who is one of the legal heirs of late Arjunaiah @ Chenchaiah and 1st J. Dr (Bujjamma) is having equal share in the property. In view of the above decree, it is made clear that the appellant, who is one of the legal heirs of late Arjunaiah @ Chenchaiah and 1st J. Dr (Bujjamma) is having equal share in the property. Aggrieved by the same, she filed an appeal in A.S. No. 56 of 2018 has been filed on the file of the court of the V Additional District Judge, Nellore and the same is pending consideration. In view of the aforementioned facts, the D. Hrs are not entitled to file the above E.P. As the appellant/claim petitioner is having 1/4th share in the E.P. schedule property, without partition and separate possession of E.P. Schedule property, the auction is not maintainable in law. Therefore, requested to dismiss E.P. No. 50 of 2013 in O.S. No. 98 of 2010. 6. The 1st respondent filed counter and the respondents no. 2 to 4 have adopted the same. They denied all the allegations made in the petition and inter-alia contended that the documents filed by the claim petitioner are no way concerned with her claim and the documents no. 3 to 8 do not belong to her and they are only showing the name of 2nd J. Dr in the E.P. and not the name of the claim petitioner. Basing on the said documents, it cannot be proved that the claim petitioner is the legal heir or family member of either 1st J. Dr or other J. Drs. The document No. 2 filed in the claim petition, which is the Xerox copy does not contain the signature or seal of receiving authority. The other documents also do not support the claim of the claim petitioner. The claim petitioner did not choose to file copy of the written statement filed in the partition suit and the name of the appellant does not find a place in the family member certificate. 7. Basing on the above pleadings, the Court below framed the following points for consideration: 1. Whether the petition under Order 21, Rule 58 r/w Section 151 C.P.C. is maintainable? 2. Whether the claim petitioner is entitled for 1/4th share in the E.P. schedule property which is also subject matter in partition suit vide O.S. No. 199 of 2009 pending on the file of I Additional Senior Civil Judge’s Court, Nellore and hence the E.P. is not maintainable? (Reproduced verbatim) 8. 2. Whether the claim petitioner is entitled for 1/4th share in the E.P. schedule property which is also subject matter in partition suit vide O.S. No. 199 of 2009 pending on the file of I Additional Senior Civil Judge’s Court, Nellore and hence the E.P. is not maintainable? (Reproduced verbatim) 8. The appellant/claim petitioner got herself examined as PW-1 and got examined PW-2 on her behalf examined and Exs.A1 to A7 were marked. On behalf of the respondents, RW-1 was examined and Exs.B1 to B3 were marked. 9. On merits, the court below dismissed the E.A. Aggrieved by the same, the present appeal came to be preferred. 10. Learned counsel for the appellant submits that the Court below without appreciating the evidence on record including the judgment and decree dated 25.01.2018 in O.S. No. 199 of 2009 on the file of learned I Additional Senior Civil Judge, Nellore and without going into the provisions of the Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956 committed serious illegality in dismissing the claim petition filed by the appellant. He further submits that the Court below erred in observing that the appellant failed to take steps to add the D. Hrs as party in O.S. No. 199 of 2009 and hence mere pendency of O.S. No. 199 of 2009 and A.S. No. 56 of 2018 for partition of the properties including the E.P. schedule property are not at all sufficient to set aside the sale dated 31.10.2017 conducted in the present E.P. as the Appellant is not a party to the Mortgage Deed dated 20.05.2009 executed between the respondents herein and that the Mortgage Decree dated 13.07.2011 i.e. Ex.B1 is a collusive decree to which the appellant herein is not a party. Therefore, the appellant need not question the Mortgage Deed or implead the respondents 1 to 3/Mortgagees herein as parties to O.S. No. 199 of 2009 on the file of the Court of the I Additional Senior Civil Judge, Nellore. As the appellant is not a party to the Mortgage Deed dated 20.05.2009 executed between the respondents 1 to 4 and respondents 5 and 6 along with 1st J. Dr and that the Mortgage Decree dated 13.07.2011 i.e. Ex.B1 is a collusive decree to which the appellant herein is not a party, the appellant need not question the Mortgage deed or implead the respondents no. 1 to 4/D. Hrs/Mortgagees herein as parties to O.S. No. 199 of 2009 on the file of the court of the I Additional Senior Civil Judge, Nellore. The Court below miserably failed to see that the respondents no. 1 to 4 and others will not have a better title than what the respondents 5 and 6/J. Drs have in E.P. Schedule property which was allegedly mortgaged to them under Ex.B1 Mortgage Deed No. 2088 of 2009, dated 20.05.2009. 11. Learned counsel further submits that the E.P. Schedule property was admittedly purchased by the father of the appellant namely Pallala Arjunaiah under a registered Sale Deed No. 3845/1981 dated 30.09.1981 and he has constructed a house consisting of ground+1 upper floor and passed away intestate on 15.12.2000. The appellant, who is the legal heir of said Late P. Arjunaiah @ Chenchaiah is entitled for an equal share on par with the respondents no. 5 and 6 and 1st J. Dr by virtue of provisions of the Hindu Succession Act, 1956. 12. Learned counsel further submits that the Court below in spite of holding that the self serving statements made in the Ex.B1 Mortgage Deed are not enough to prove the alleged adoption of the appellant to Pallala Chenchaiah and that the Family Member certificate issued by the Tahsildar has no evidentiary value gravely erred in dismissing the appellant’s claim petition. He further submits that the Court below failed to see that O.S. No. 199 of 2009 was presented on 15.04.2009, prior to Ex.B1 Mortgage Deed dated 20.05.2009. He further submits that the Court below ought to have seen that Section 47 read with Order XXI Rules, 58, 97, 101 and 103 of Code of Civil Procedure, 1908 (CPC) mandates that all questions, arising between the parties to the suit, in which the decree was passed, or the persons claiming through them, shall be determined by the Executing Court without the necessity of filing separate suit. Hence, the appellant, who is claiming independent right of her legitimate share in the E.P. Schedule property can maintain the claim petition and mere quoting of wrong provision of law as Order XXI Rule 58 will not disentitle the appellant to maintain the claim petition though the decree is a mortgage decree. 13. Hence, the appellant, who is claiming independent right of her legitimate share in the E.P. Schedule property can maintain the claim petition and mere quoting of wrong provision of law as Order XXI Rule 58 will not disentitle the appellant to maintain the claim petition though the decree is a mortgage decree. 13. He further submits that the rights of the appellant in respect of the properties of late Pallala Arjunaiah were already decided in O.S. No. 199 of 2009 and therefore the claim of the respondents that the appellant is given in adoption to Pallala Chenchaiah, is barred under Section 11 of the C.P.C. He further submitted that the Court below failed to see that the respondents have failed to lead any evidence both oral and documentary to prove their case. The order passed by the Court below is erroneous, contrary to law. Therefore, prayed to set aside the same and allow the E.A. 14. Per Contra, learned counsel for the respondents 1 to 4/D. Hrs, while reiterating the averments in the counter filed before the court below and the contentions raised before the court below, supported the impugned order passed by the court below. 15. We have gone through the impugned order. The Court below having framed two points for consideration, which were extracted supra, while answering the said points referred to the respective claims of the parties before it. The court below had discussed the evidence of PWs. 1, 2 and RW-1 and observed that admittedly the E.P. schedule properties are self acquired properties of Arjunaiah, who is the father of the appellant, J. Drs 2 and 3 and husband of 1st J. Dr. The court below had discussed the evidence of PWs. 1, 2 and RW-1 and observed that admittedly the E.P. schedule properties are self acquired properties of Arjunaiah, who is the father of the appellant, J. Drs 2 and 3 and husband of 1st J. Dr. However, with regard to the claim of the appellant/claim petitioner that she is having 1/4th share in the E.P. schedule property and the partition suit in respect of E.P. schedule property which is one of the subject matter in the partition suit O.S. No. 199 of 2009 before the Court of the I Additional Senior Civil Judge, Nellore, without allotting the share of the petitioner in the E.P. schedule property, the sale deed dated 31.10.2017 of the E.P. schedule property is not maintainable in law as rightly held that the claim petitioner failed to take steps to add the D. Hr herein as party in a suit for partition in O.S. No. 199 of 2009 and she also failed to challenge the decree in O.S. No. 98 of 2010. Hence, the mere pendency of O.S. No. 199 of 2009 and A.S. No. 56 of 2018 with regard to partition of the properties including the E.P. schedule property is not at all sufficient to set aside the sale deed dated 31.10.2017 concluded in the E.P. proceedings. 16. The Court below also dealt with the contentions of the defendants that the appellant/claim petitioner was given in adoption and that even if the appellant is also the legal heir of deceased father, she along with J. Drs 1 to 3 is liable to pay the decree debt in O.S. No. 98 of 2010 and held that such contentions are not acceptable. Eventually while dealing with the maintainability of the E.A under Order XXI, Rule 58 C.P.C. having referred to the decisions relied on by the D. Hrs i.e. M.S. Dorai Swamy Iyer vs. A.R. Arunachalam Chettiar and Others, AIR 1991 Mad. Eventually while dealing with the maintainability of the E.A under Order XXI, Rule 58 C.P.C. having referred to the decisions relied on by the D. Hrs i.e. M.S. Dorai Swamy Iyer vs. A.R. Arunachalam Chettiar and Others, AIR 1991 Mad. 275 and also the order in C.M.S.A. No. 55 of 2007 decided on 23.06.2008 [(2008) 69 AIC 750 : 2008 (4) ALT 231 : (2008) 4 ALD 770 ] observed that the said decisions, in the fact situation of the present case, do not apply and held that as the E.P. is based on the mortgage decree as there is no attachment of property and as the decree under execution is also not challenged, the question of maintaining the E.A under Order XXI, Rule 58 of C.P.C. does not arise and accordingly dismissed the petition. 17. The main question raised is with regard to maintainability of the present application. In all to appreciate the same, it would be appropriate to refer Order 21 Rule 58 of CPC, which reads as under: 58. Adjudication of claims to, or objections to attachment of, property (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained: (a) where, before the claim is preferred or objection is made, the property attached has already been sold. (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in Sub-Rule (2), the Court shall, in accordance with such determination: (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit. (b) disallow the claim or objection. (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person. (b) disallow the claim or objection. (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person. (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court, under the proviso to Sub-Rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claims or objection shall be conclusive. 18. A reading of the above said provision gives a right to the person objecting the attachment of any property under the execution proceedings on the basis of its rights. When once such objections are filed, the executing Court may dismiss the said application at the initial stage if the property attached is already sold out or such objections are initiated to protect the proceedings. But, when the application is not dismissed on such ground, the execution Court in such situation is duty bound to hold enquiry by extending an opportunity to the parties by adducing the evidence to indicate their rights as extended in suit. The executing Court has to deal with all issues including questions relating to title etc. In order to determine the same, a duty is cast on the Court to conduct an enquiry, giving opportunity to the parties to adduce evidence and thereafter to proceed to adjudicate the matter in accordance with the said provisions since it has the effect of decree also. 19. In K. Venkarayappa vs. Ellen Industries, Coimbatore and Others, 1985 AIR A.P. 261 the High Court of Andhra Pradesh while dealing with Order 21, Rule 58 of CPC held as under: 3. Order 21, Rule 58, C.P.C. gives a statutory and substantial right to a person to object to the attachment of any property in execution of a decree. 19. In K. Venkarayappa vs. Ellen Industries, Coimbatore and Others, 1985 AIR A.P. 261 the High Court of Andhra Pradesh while dealing with Order 21, Rule 58 of CPC held as under: 3. Order 21, Rule 58, C.P.C. gives a statutory and substantial right to a person to object to the attachment of any property in execution of a decree. When an application, in exercise thereof, has been filed, Clauses (a) and (b) of proviso to Sub-Rule (1) of Rule 58 clothes Court with power to dismiss such an application in limine, or (a) that the property attached had already been sold out; or (b) it was intended to protract the proceedings and in that process the application was designedly made or unnecessarily has been filed. If the Court exercises that power, the applicant is relegated to vindicate his rights by way of a regular suit as contemplated under Sub-Rule (5) of Rule 58 of Order 21 thereof. If the Court did not exercise the power at its inception in terms of the above provisions, then Sub-Rule (2) thereof enjoins the Court that all questions including the question relating the right title or interest in the property attached shall be determined by that Court dealing with the claim or objection and not by a separate suit. Thereby, 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. Broached from this perspective, when we gleaned through the order passed, it must but be held that the lower Court passed the order under Sub-Rule (2) of Rule 58 of Order 21, without holding an enquiry and without giving an opportunity to the Party. It straightway passed the order on merits. Broached from this perspective, when we gleaned through the order passed, it must but be held that the lower Court passed the order under Sub-Rule (2) of Rule 58 of Order 21, without holding an enquiry and without giving an opportunity to the Party. It straightway passed the order on merits. Therefore the order is per se contrary to the mandatory language and scheme of the Code; thereby it is not only in excess of the jurisdiction but also is vitiated by material irregularity in exercise of its jurisdiction. 20. Similar such view also taken up by the Division Bench of the Madras High Court in M/s. Southern Steelmet and Alloys Ltd. vs. B.M. Steel, AIR 1978 Mad. 270 wherein it is held as under: 4........We have already expressed the view that the adjudication referred to under Order 21 Rule 58 C. P. Code not being summary and as it is the intention of the Legislature under the amended Civil Procedure Code that it should be a decision as if rendered in a regular suit resulting in an appealable decree, we are of the view that a fuller examination of the rights of parties has to be held in the instant case after giving them adequate opportunity to place all relevant materials before the trial court, so that it could ultimately decide and adjudicate on all questions including questions relating to right, title or interest in the property attached which either directly or indirectly arise between the parties to the proceedings. This not having been done, we are constrained to set aside the order of the learned Judge and remit the subject matter to the Original Side of This Court for a fuller and detailed examination as contemplated under the amended provision and for an ultimate decision after adjudication of the rights of parties. To the above extent, the appeal is allowed. There will be no order as to costs. 21. We are also fortified with our view by a Judgment of Division Bench of Madhya Pradesh High Court and having regard to the judgments referred above, it is very clear that Order 21, Rule 58 CPC deals with adjudication of claims or objections with regard to properties attached either directly or indirectly between the parties to the proceedings. 21. We are also fortified with our view by a Judgment of Division Bench of Madhya Pradesh High Court and having regard to the judgments referred above, it is very clear that Order 21, Rule 58 CPC deals with adjudication of claims or objections with regard to properties attached either directly or indirectly between the parties to the proceedings. This having not been done in the instant case, but the objection is to the execution proceedings for brining the mortgaged property for sale, we find no merits and accordingly the same is dismissed. No costs. 22. As a sequel thereto, miscellaneous applications, if any pending, shall stand closed.