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2024 DIGILAW 1503 (AP)

Kandula Chennarayudu v. Jonnalagadda Nagamani

2024-10-22

B.S.BHANUMATHI

body2024
JUDGMENT : 1. The civil revision petition is filed under Article 227 of the Constitution of India against the order dated 05.01.2024 in IA No.802 of 2023 in AS No.125 of 2023 on the file of the I Additional District Judge, Nellore filed under Section 94(e) read with Order 41 Rule 5 and Section 151 of the Code of Civil Procedure, to stay all further proceedings including the conducting of auction to be held on 22.08.2023 pending disposal of the appeal in EA No.32 of 2022, EP No.63 of 2017 in OS No.487 of 2015 on the file of Principal Senior Civil Judge, Nellore. 2. It is mainly contended that the Appellate Court while passing interim order staying the proceedings in EA No.32 of 2022, further directed not to confirm sale in the absence of the purchaser before the Appellate Court. 3. EA No.32 of 2022 was filed under Order 21 Rule 58 of the Code of Civil Procedure by the 1st respondent herein who is no other than the wife of the 2nd respondent/JDR, and having failed to get the relief, preferred appeal in AS No.125 of 2023. By filing IA No.802 of 2023 in the said appeal, the 1st respondent sought protection order under Order 41 Rule 5 and Section 151 of the Code of Civil Procedure, to stay all further proceedings as noted above. 4. The petition was contested by the decree holder by filing counter. After hearing the petitioner/appellant and the respondent/DHR, the Appellate Court observed that so many aspects are submitted by the DHR in respect of merits of the appeal itself and unless stay is granted, the very purpose of filing the appeal would be frustrated and therefore without going into the merits of the appeal to be argued, allowed the petition and stayed the orders passed in EA No.32 of 2022 and directed the Execution Court not to confirm the sale till further orders of the Appellate Court and further directed both the parties to co-operate for disposal of the main appeal itself and noted that the stay would operate only on depositing costs of EA into the Court. Aggrieved by the order, this revision petition is filed stating that the observation of the Appellate Court that it has no need to go into the merits of the appeal is grossly incorrect and the impugned order would cause irreparable loss and inconvenience and also would lead to multiplicity of proceedings and miscarriage of justice. 5. The learned Counsel for the petitioner submitted that pending the petition in IA No.802 of 2023, the sale was held on 21.09.2023, however without the purchaser being made as a party, the impugned order was passed by the Appellate Court not only staying the order in EA No.32 of 2022 but also directing the Execution Court not to confirm the sale and thus it executed its jurisdiction by passing order detrimental to the interest not only to the petitioner but also the decree holder. 6. The learned Counsel for the respondent stated that the Appellate Court has observed that unless stay is granted the very purpose of filing the appeal would be defeated and therefore, it rightly passed the order of stay and furthermore, the Appellate Court directed both the parties to co-operate for the early disposal of the appeal and that the 1st respondent is ready and willing to co-operate for disposal of the appeal itself. 7. The pertinent question raised by the learned Counsel for the petitioner during the course of the arguments is regarding the tenability of the order which would affect the interest of the party not before the Court. Therefore, irrespective of the merit in the appeal or the merit in the observation of the Appellate Court that unless the interim stay is granted, the purpose of filing the appeal would be defeated; this Court is of the view that the part of the order which prevented the Execution Court in confirming the sale until further order, passed by the Appellate Court knowing that the sale was held and the purchaser is not before it, is un-sustainable. The Appellate Court is of the view that appeal can be heard and disposed of. 8. Accordingly, the civil revision petition is partly allowed and the order dated 05.01.2024 in IA No.802 of 2023 is set aside to the extent of directing the Principal Senior Civil Judge, Nellore not to confirm the sale until further orders of the Appellate Court and the rest of the order of stay is upheld. 8. Accordingly, the civil revision petition is partly allowed and the order dated 05.01.2024 in IA No.802 of 2023 is set aside to the extent of directing the Principal Senior Civil Judge, Nellore not to confirm the sale until further orders of the Appellate Court and the rest of the order of stay is upheld. Both the parties shall co-operate with the Appellate Court for expeditious disposal of the appeal as observed in the order. There shall be no order as to costs. 9. Consequently, miscellaneous petitions, if any, pending in this civil revision petition shall stand closed.