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2023 DIGILAW 230 (AP)

Vasamsetti Vijaya Kumar, S/o. Venkata Rao v. Vasamsetti Ramanamma, W/o. Venkata Rao

2023-01-30

SUBBA REDDY SATTI

body2023
ORDER : Claim petitioner filed C.R.P.No.456 of 2022 against the order dated 15.02.2022 in E.A.No.83 of 2020 in E.A.No.1622 of 2022 in E.P.No.173 of 2017 on the file of Principal District Judge, East Godavari, Rajamahendravaram. 2. Claim petitioner filed C.R.P.No.598 of 2022 against the order dated 10.03.2022 in E.P.No.173 of 2017 in C.E.P.No.43 of 2015-2016 on the file of Principal District Judge, East Godavari, Rajamahendravaram. 3. Judgment Debtors filed C.R.P.No.585 of 2022 against the order dated 10.03.2022 in E.P.No.173 of 2017 in C.E.P.No.43 of 2015-2016 on the file of Principal District Judge, East Godavari, Rajamahendravaram. 4. Vasamsetti Vijaya Kumar is hereinafter referred to as "Claim Petitioner"; Vasamsetti Ramanamma and Vasamsetti Venkata Rao are hereinafter referred to as "Judgment Debtors 1 and 2" (J.Drs); The Innispeta Cooperative Urban Bank Limited, Rajamahendravaram is hereinafter referred to as "Decree Holder" (D.Hr) and Bandi Prasanthi is hereinafter referred to as "Auction Purchaser". 5. (a) J.Drs secured a loan of Rs.50,000/- from the D.Hr in the name of second J.Dr. Mortgage deed was executed in respect of 94 square yards bearing Door No.85-6-32 in V.L. Puram, Rajamahendravaram. The document stood in the name of V. Ramanamma, wife of V. Venkata Rao. J.Drs entered into an agreement with D.Hr on 17.12.1996. J.Drs also borrowed Rs.2,00,000/- was granted by D.Hr on 27.07.1999. J.Drs further borrowed Rs.5,00,000/- on 18.01.2001 from the D.Hr. Necessary documents were executed in favour of D.Hr. (b) Since, the J.Drs failed to repay the installments/ amount, D.Hr filed application before the Sub Division Cooperative Officer, Rajamahendravaram for recovery of amount. After enquiry, certificate under Section 71 (1) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short “APCS Act”), in Case No.137 of 2002-2003 dated 24.07.2002, was issued to pay a sum of Rs.6,37,250/- together with further interest @17.5%. J.Drs filed appeal before the A.P. Cooperative Tribunal, Visakhapatnam vide O.A.No.139 of 2004. Appeal was allowed by the Tribunal on 05.07.2005 and the matter was remanded back to the Deputy Registrar of Cooperative Societies, Rajamahendravaram for fresh disposal. (c) D.Hr preferred an Arbitration Petition under Section 61 of the APCS Act before the Deputy Registrar of Cooperative Societies, Rajamahendravaram vide Claim No.740 of 2005 to pass an award for Rs.11,18,173/-. After issuing notices to J.Drs, the Deputy Registrar of Cooperative Societies allowed the claim by award dated 30.06.2006 under Section 62 of the APCS Act for Rs.11,18,173/- with interest @17.5% on quarterly compound. After issuing notices to J.Drs, the Deputy Registrar of Cooperative Societies allowed the claim by award dated 30.06.2006 under Section 62 of the APCS Act for Rs.11,18,173/- with interest @17.5% on quarterly compound. J.Drs filed O.A.No.115 of 2006 before the A.P. Cooperative Tribunal, Visakhapatnam. The appeal was dismissed on 04.06.2008. Aggrieved by the same, J.Drs filed W.P.No.12647 of 2008 and the same was dismissed on 24.03.2011. W.A.No.402 of 2011 filed by them was also dismissed on 17.07.2011. (d) D.Hr filed E.P.No.43 of 2015-2016 before the Deputy Registrar of Cooperative Societies, Rajamahendravaram. After following the procedure, property mortgaged was put to sale and the sale date was fixed on 04.04.2016. In the sale conducted, the auction purchaser became the highest bidder for Rs.61,00,000/-, sale was confirmed on 22.06.2016, sale certificate was issued on 04.04.2014 and the same was registered on 06.04.2017. (e) J.Drs filed W.P.No.9106 of 2017 against the confirmation of sale and the same was dismissed on 20.03.2017. J.Drs filed O.A.No.192 of 2016 on the file of A.P. Cooperative Tribunal, Vijayawada, challenging interest rate alone. The said O.A. was dismissed on 21.03.2018. (f) Claim petitioner, son of J.Drs, filed Claim Petition No.1 of 2016 on 04.04.2016 before the Deputy Registrar of Cooperative Societies, Rajamahendravaram, after completion of auction process, contending that his grandmother gifted 195 square yards; that D.Hr wrongly shown the gifted property as mortgage property and is trying to get the auction conducted. The said claim petition was dismissed on 21.06.2016. Claim petitioner also filed suit O.S.No.99 of 2016 on the file of Additional District Judge, Rajamahendravaram seeking declaration of his right in respect of 175.58 square yards. In the suit, I.A.No.842 of 2016 was filed under Order XXXIX Rules 1 and 2 of CPC. Initially, order of status quo was granted and later the same was vacated on merits on 10.03.2017. (g) Auction purchaser filed E.P.No.173 of 2017 under Rule 52 (15) of the Andhra Pradesh Cooperative Societies Rules, 1964 (for short “APCS Rules”) and under Order XXI Rule 95 of CPC on the file of Principal District Judge, East Godavari, Rajamahendraaram seeking delivery of property. In the said E.P., claim petitioner filed E.A.No.1622 of 2017 under Order XXI Rule 97 of CPC. Pending the said claim petition, the claim petitioner filed statutory appeal against the order dated 21.06.2016 in Claim Petition No.1 of 2016 vide OASR No.153 of 2018 with delay. In the said E.P., claim petitioner filed E.A.No.1622 of 2017 under Order XXI Rule 97 of CPC. Pending the said claim petition, the claim petitioner filed statutory appeal against the order dated 21.06.2016 in Claim Petition No.1 of 2016 vide OASR No.153 of 2018 with delay. Claim petitioner also filed W.P.No.7702 of 2019 and the same was disposed of directing the Tribunal to pass order in M.A.No.51 of 2018 in OASR No.153 of 2018. Initially, in W.P.No.7702 of 2019 interim orders were passed and later, interim order was vacated on 21.10.2019. (h) In E.A.No.1622 of 2017 under Order XXI Rule 97 of CPC filed by claim petitioner, auction purchaser filed E.A.No.83 of 2020 under Section 151 of CPC to decide the maintainability of E.A.No.1622 of 2017 in E.P.No.173 of 2017. The Court below by order dated 15.02.2022 allowed E.A.No.83 of 2020 and as a consequence, claim petition in E.A.No.1622 of 2017 in E.P.No.173 of 2017 filed by claim petitioner is held to be not maintainable. 6. Aggrieved by the order dated 15.02.2022 in E.A.No.83 of 2020, C.R.P.No.456 of 2022 is filed. 7. Since E.A.No.83 of 2020 is allowed, the Court below order E.P.No.173 of 2017 filed by the auction purchaser on 10.03.2022 to deliver the property. Aggrieved the same, the claim petitioner filed C.R.P.No.598 of 2022 is filed. 8. Aggrieved by the order, ordering delivery of property in E.P.No.173 of 2017, the J.Drs filed C.R.P.No.585 of 2022. 9. Heard Sri K. Chidambaram, learned senior counsel representing Sri G. Yaswanth, learned counsel for claim petitioner; Sri V.V.N. Narayana Rao, learned counsel for auction purchaser and Sri Basava Srinivas, learned counsel for Decree Holder and Sri Narasimha Rao Gudiseva learned counsel appearing for Judgment debtors. 10. Learned senior counsel would submit that the property mortgaged to the bank is 94 sq. yards and auction was conducted in respect of 94 sq. yards and sale certificate was also issued for 94 sq. yards. However, under the guise of sale certificate, the auction purchaser is trying to get delivery of 175.58 sq. yards, gifted to claim petitioner by his grandmother by way of registered gift deed dated 18.03.2013. He would also submit that mortgaged property and the property gifted in favour of claim petitioner are adjacent and same door number was assigned to both the properties. yards, gifted to claim petitioner by his grandmother by way of registered gift deed dated 18.03.2013. He would also submit that mortgaged property and the property gifted in favour of claim petitioner are adjacent and same door number was assigned to both the properties. He would submit that E.A.No.83 of 2020 filed by the auction purchaser could not have been entertained and Section 11 of CPC as no application. He would also submit that S.No.306, where the property is situated is sub-divided. If an advocate commissioner is appointed, it will be easy to identify both the properties. Counsel appearing for J.Dr adopted the arguments of learned senior counsel. 11. On the other hand, learned counsels appearing on behalf of auction purchaser and D.Hr supported the order of the Court below. 12. In view of the above contention and material on record, the following point falls for consideration : Whether the order passed by the Court below in E.A.No.83 of 2020 is sustainable? 13. The factual matrix referred to supra, would disclose that J.Drs mortgaged the property of 94 sq. yards with Door No.85-6-32, V.L. Puram, Rajamahendravaram. J.Drs also admitted about their securing loan from the D.Hr. Pursuant to passing of award dated 30.06.2006, mortgaged property was put to sale and the auction purchaser became the highest bidder. Sale was confirmed on 22.06.2016, sale certificate was issued on 04.04.2017 and it was registered on 06.04.2017. 14. When the property was put to sale, claim petitioner filed claim petition No.1 of 2016 before the authority and the same was dismissed on merits. Against which, he has filed statutory appeal OASR No.153 of 2018 with delay and the same is pending before the Tribunal. Auction purchaser filed E.P.No.173 of 2017 under Order XXI Rule 95 of CPC and under Rule 52 (15) of APCS Rules. 15. Against which, he has filed statutory appeal OASR No.153 of 2018 with delay and the same is pending before the Tribunal. Auction purchaser filed E.P.No.173 of 2017 under Order XXI Rule 95 of CPC and under Rule 52 (15) of APCS Rules. 15. It is apt to extract Rule 52 (15) of APCS Rules, which reads thus : “(15) Where any lawful purchaser of immovable property is resisted and prevented by any person, other than a person (not being the defaulter) claiming in good faith to be in possession of the property on his own account from obtaining possession of the immovable property purchased, any Court of competent jurisdiction, on application and production of the certificate of sale, provide for by sub-rule (14) shall cause the proper process to be issued for the purpose of putting such purchaser in possession in the same manner as if the immovable property purchased has been decreed to the purchaser by a decision of court.” 16. A plain reading of the above sub-rule would indicate that after completion of sale and issuance of sale certificate under the provisions of the APCS Act, when it comes to delivery, in case of any resistance and prevention, the auction purchaser, by virtue of the above provision, is allowed to move application before the Civil Court. 17. Civil Court, as per the language employed in Rule 52(15) of the Rules, will not go into or deal with the merits of the petition filed seeking delivery of property. In fact, separate mechanism is provided under APCS Act and the Rules made thereunder regarding claim petitions and also appeal against the orders passed. Civil Court is conferred with the power to deliver property alone under sub-rule 15 of Rule 52 of the APCS Rules. In Rule 52 of the APCS Rules, procedure is prescribed regarding conducting of auction, confirmation, making of application by either side to set aside auction or claim petition etc. In fact, as per Section 121 of the APCS Act, the jurisdiction of civil Court is specifically barred. When mechanism is provided under APCS Act and the Rules made thereunder, filing claim petition in the E.P. filed by auction purchaser seeking delivery of property, in the opinion of this court, such a claim petition, itself is not maintainable. 18. In fact, as per Section 121 of the APCS Act, the jurisdiction of civil Court is specifically barred. When mechanism is provided under APCS Act and the Rules made thereunder, filing claim petition in the E.P. filed by auction purchaser seeking delivery of property, in the opinion of this court, such a claim petition, itself is not maintainable. 18. Claim petitioner, in fact, filed claim petition No.1 of 2016 in CEP No.43 of 2015-2016 before the Deputy Registrar of Cooperative Societies, Rajamahendravaram and the same was dismissed on 21.06.2016. Against the said dismissal, he filed a statutory appeal under Section 76 of the APCS Act before the Tribunal with delay and the same is pending consideration. 19. As can be seen from the record, claim petition filed statutory appeals vide OASR No.153 of 2018 and OASR No.167 of 2018 under Section 76 of the APCS Act and the same are pending consideration before the appellate authority. Claim petitioner ought to have taken steps before the appellate authority to pass appropriate orders in the appeals. Even J.Drs also filed appeal before the appellate authority. In fact, as can be seen from the record, claim petitioner filed W.P.No.7702 of 2019 against M.A.No.51 of 2018 in OASR No.153 of 2018 and M.P.No.123 of 2018 in OASR No.167 of 2018. Initially, interim order was granted in I.A.No.1 of 2019, however, the same was vacated. 20. Civil Court, in view of bar under Section 121 of the APCS Act, in the opinion of this Court cannot decide the claim petition in E.A.No.1622 of 2017. In fact, the Court below concluded that it has no jurisdiction to entertain the claim petition and hence, the claim petition in E.A.No.1622 of 2017. 21. As can be seen from the material available on record, J.Drs being mother and father and the claim petitioner, being the son filed nearly 19 cases including the above three CRPs at different forums after initiation of proceedings by D.Hr. to recover the amount pursuant to the default committed by the J.Drs. 22. The property mortgaged to the Bank is bearing Door No.85-6-32 and in respect of the same property, proceedings were taken place. E.P.No.173 of 2017 was filed under Rule 52 (15) of the APCS Rules and under Order XXI Rule 95 of CPC to depute Amin to deliver the property as per the sale certificate. 22. The property mortgaged to the Bank is bearing Door No.85-6-32 and in respect of the same property, proceedings were taken place. E.P.No.173 of 2017 was filed under Rule 52 (15) of the APCS Rules and under Order XXI Rule 95 of CPC to depute Amin to deliver the property as per the sale certificate. As per the sale certificate, the schedule property mentioned is bearing Door No.85-6-32, R.S.No.306, G+1 RCC Building, V.L. Puram, Rajamahendravaram, East Godavari District. 23. The Court below by following the procedure ordered delivery of property in E.P.No.173 of 2017. This Court does not find any illegality in the order dated 10.03.2022. 24. In view of discussion made supra, this Court does not find any illegality or perversity to interfere with the order dated 15.02.2022 in E.A.No.83 of 2020 in E.A.No.1622 of 2022 in E.P.No.173 of 2017 on the file of Principal District Judge, East Godavari, Rajamahendravaram. This court also Doesn’t find any illegality in the order dated 10.03.2022 in E.P.No.173 of 2017 in C.E.P.No.43 of 2015-2016 on the file of Principal District Judge, East Godavari, Rajamahendravaram. The revision petitions lacks merit and the same are liable to be dismissed. 25. Accordingly, three Civil Revision Petitions are dismissed. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.