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2023 DIGILAW 1652 (AP)

B. Narasimha Rao v. G. S. Murthy

2023-12-29

K.MANMADHA RAO

body2023
JUDGMENT : K. Manmadha Rao, J. 1. The Appellants herein are the claim petitioners 3 to 5 before both the Court below filed the present Civil Miscellaneous Appeal before this Court, aggrieved by the order dated 27.10.2016 in E.A. No. 90 of 2010 in E.P. No. 271 of 1998 in O.S. No. 28 of 1993 on the file of the Court of the Principal Senior Civil Judge, Kakinada (in short ‘the court below’), which is filed under Order XXI, Rules 90 and 101 of C.P.C seeking to declare the petition schedule property as ‘assigned property’ and consequently declare the auction held by the court below on 13.12.2000 as void and to raise the attachment. 2. The court below after hearing on both the counsel, holding that the appellants have failed to substantiate their claim by adducing evidence that there was irregularity in conducting the auction, by the court. Their version is that the schedule property is assigned property, but Ex.B4 and B5 and other oral evidence, it is not at all assigned property and it is a private property and that the appellants are not entitled to any relief and accordingly dismissed the application. Assailing the same, the present C.M.A came to be filed. 3. Heard Mr. A.S.C. Bose, learned counsel for the appellants/claimants 3 to 5 and Mr. M.R.S. Srinivas, learned counsel for the 1st respondent/D.Hr. 4. During hearing learned counsel for the appellants would contend that the 1st respondent along with the court staff came to the property of the appellants and insisted them to vacate the property and then only the appellants came to know about the suit between the respondents. The assigned property is only heritable, but not alienable. Therefore any transaction between the respondents with regard to the assigned property is null and void. It is further contended that the 1st respondent played fraud in purchasing the property in the court auction, even though the property is assigned property and that the 1st respondent has no right to purchase the same, which the court below failed to look into. Even prior to the date of attachment there existed two story building in the schedule property. As per Section 3 of the Assignment Act, 1977, it prohibits the sale of assigned land in execution of a decree. Even prior to the date of attachment there existed two story building in the schedule property. As per Section 3 of the Assignment Act, 1977, it prohibits the sale of assigned land in execution of a decree. The ground of in alienability of the assigned land can be raised at any time, since such sales are prohibited including sale and execution of the decree. Therefore the impugned order passed by the court below is liable to be set aside. 5. Whereas, learned counsel for the 1st respondent/D.Hr reiterated the contentions urged before the courts below and mainly contended that the court below has rightly discussed the issue in right perspective and dismissed the impugned application. Therefore the appellants are not entitled to claim any relief in this C.M.A. 6. Perused the record. 7. During the course of hearing, learned counsel for the respondents placed on record the decision of this Court in B. Nookaraju v. M.S.N. Charities and Others, AIR 1994 AP 334 , wherein it was held as follows: “12. No doubt, Order 21, Rule 58 (4) declared that the order made under sub-rule (3) “while have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree” Thus, the order is declared to be a ‘deemed decree’ and not a ‘decree’ by itself.” 8. Further he relied on a decision of this Court in Gurram Seetharam Reddy v. Gunti Yashoda, 2004 (6) Andh LD 175 (FB), wherein the learned Division Bench of this Court held as follows: “12. To the same effect was Rule 103, in relation to delivery of possession. A party aggrieved by an order passed under Rule 63 or 103, had to file a suit to establish his claim. In its Fourteenth and Twenty Seventh Reports, the Law Commission identified this as a factor, giving rise to multiplicity of proceedings. With a view to remedy the situation, it pointed out that such claims be finally adjudicated in the same suit, instead of making it necessary for the parties to file separate suits. After taking into account the observations made in the Fourteenth Report, the Law Commission made the following recommendation in its Twenty Seventh Report: “Para 41: Delay in execution proceedings is mainly due to certain dilatory tactics adopted by judgment-debts. After taking into account the observations made in the Fourteenth Report, the Law Commission made the following recommendation in its Twenty Seventh Report: “Para 41: Delay in execution proceedings is mainly due to certain dilatory tactics adopted by judgment-debts. When in execution proceedings any property is attached, there is generally a claim filed under Order XXI, Rule 58. If this claim is rejected, a suit is filed under Rule 63 of that Order. If the attachment of the property is finally upheld, there are obstruction proceedings under Rule 97, followed by a suit under Rule 103. The fourteenth Report, contains a recommendation that claim proceedings or obstruction proceedings should be finally determined by the execution Court, and that where they are so determined, there should be no right of suit. This recommendation has been made with a view to eliminating delay in execution proceedings. Unfortunately, we have no statistics to indicate in what percentage of cases a suit is filed under Rule 63 or Rule 103. We are, however, in agreement with the recommendation in the Fourteenth Report, which is based upon certain evidence recorded by the Commission” ..... 39. An examination of the provisions reveals that while Article 11(i) specifically and directly refers to the applications filed under Order 21, Rule 58, Section 38 is a general provision in relation to suits to set aside the attachment. It is true that an application filed under Rule 58 are to be decided in the same manner as a suit. However, they cannot be said to be suits referred to in Section 38. The occasion to file a suit to set aside the attachment under Section 38 would arise, if only the application filed under sub-rule (1) of Rule 58 is not entertained and returned. It is on such suits, that the Court fee is payable under Section 38. On the other hand, if the application is entertained, clause 11(i) of Schedule II gets straightaway attracted. Even otherwise, it is settled principle of law that where situations are governed by a specific and a general provision, the latter has to give way. Therefore, the Court fee payable for applications filed under Rule 58 Order 21 shall be the one provided for under clause 11(i) of Schedule II. Even otherwise, it is settled principle of law that where situations are governed by a specific and a general provision, the latter has to give way. Therefore, the Court fee payable for applications filed under Rule 58 Order 21 shall be the one provided for under clause 11(i) of Schedule II. Consequently, the Court fee payable in an appeal filed against the orders passed in such applications is the same as the one payable on the application, as provided for under Section 49 of the Act. The view expressed in Biksha Reddy’s case (supra), on the Court fee payable on applications filed under Rule 97 Order 21, holds good for that category of applications as also the appeals arising out of them.” 9. The learned Division Bench of this Court had discussed catena of decisions in Gurram Sedetharam Reddy’s case (supra) on various counts. It appears that the appellants have filed the claim petition only to avoid execution proceedings by narrating facts in the affidavit it cannot be looked into at the stage of execution proceedings. 10. Therefore, following the decisions cited supra, this Court is inclined to dismiss the C.M.A, while granting liberty to the claim petitioners i.e appellants herein to appraise their grievance, if any, by filing separate proceedings before the competent authority/ fora in accordance with law. Therefore the appellants cannot drawn attention of this Court to interfere with the impugned order passed by the court below, as it is unwarranted. 11. In view of the foregoing discussion, the C.M.A. is dismissed accordingly. There shall be no order as to costs. 12. As a sequel, miscellaneous applications pending, if any, shall also stand closed.