Andhra HC (Pre-Telangana)
Aitha Gopalakrishna S/O. Ramamurthy vs Miryala Venkata Radha Krishna S/O. Late ... on 24 June, 2004
Equivalent citations: AIR2004AP542, 2004(4)ALD662, 2004(5)ALT447, AIR 2004 ANDHRA PRADESH 542, (2004) 21 ALLINDCAS 864 (AP), (2004) 2 ANDHWR 351, (2004) 4 ANDHLD 662, (2004) 5 ANDH LT 447
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. This CRP is filed against the order dated 03-09-1998 passed by the learned Principal Junior Civil Judge, Anakapalle, in E.P.No. 57 of 1989 in O.S.No. 334 of 1961.
2. The petitioner is the 3rd party in O.S. No. 334 of 1961. The suit was initially filed in the Court of District Munsif, Visakhapatnam, by late Miryala Suryanarayana, the father of respondent Nos. 1 and 2, for the relief of declaration of title and delivery of possession of the suit schedule property. It was filed against as many as 18 defendants. Respondents 3 to 9 are the legal representatives of the 12th defendant, by name, Vuriti Narayana Rao. The suit was decreed on 19-11-1965.
3. After the decree became final, obviously, after appeal and 2nd appeal, respondents 1 and 2 filed E.P.No. 52 of 1989. Ultimately, the possession of the suit schedule property was delivered to them on 15-07-1998.
4. The petitioner filed the E.P. under Rule 99 of Order 21 C.P.C., alleging that the suit schedule property was purchased jointly by his mother and late Vuriti Narayana Rao, the 12th defendant. He alleges that respondents 3 to 9 colluded with respondents 1 and 2 and permitted delivery of the possession, detrimental to his interests. The application was opposed by respondents 1 and 2. Through its order dated 03-09-1998, the executing Court rejected the E.P., as not maintainable. Hence, this CRP.
5. Sri P. Sri Raghuram, learned counsel for the petitioner submits that the application filed under Rule 99 of Order 21 C.P.C., was required to be decided in a manner as though it was a separate suit, particularly in the context that the mandate contained in Rule 101 C.P.C. as well as the prohibition imposed by it against filing a separate suit. He contends that even in a case where the objection or contention raised by 3rd parties, under Rule 99 C.P.C., is found to be untenable, the same needs to be decided, after due trial, and this becomes mandatory, in view of the fact that a regular appeal is provided for, under Rule 103.
6. Sri K.S.R. Murthy, learned counsel for the respondents, on the other hand, submits that once the E.P. was closed on delivery of possession, nothing remains to be decided, and no exception can be taken to the order under revision. He also contends that the petitioner cannot be treated as 3rd party, for the reason that his mother, through whom he is claiming, figured as defendant No. 13 in the suit.
7. The CRP is filed against the order of rejection of an application filed under Rule 99 of Order 21 C.P.C. Though a doubt arises as to the maintainability of the C.R.P., in the context of existence of remedy of appeal, under Rule 103 of the C.P.C., the same cannot detain further discussion.
8. The petitioner filed application under Rule 99 of Order 21 C.P.C., alleging that he holds independent right, in respect of the suit schedule property, and delivery of the same in favour of respondents 1 and 2 was detrimental to his interests. This application was rejected by the trial Court with the following endorsement:
"On verification of E.P.57/89 as per Docket Order Dt.31.7.98 delivery is ordered and E.P. is closed. Hence, the petitioner has no locus standi to file it. Hence, the petition is rejected".
9. It is evident that the executing Court flatly refused to exercise jurisdiction vested in it. Hence, the order can be brought within the purview of Section 115 C.P.C.
10. On the face of it, the order passed by the executing Court cannot be sustained. The view taken by the executing Court that the petitioner does not have any locus standi to file the application since the E.P. is closed, in fact, runs contrary to the specific language employed in Rule 99 C.P.C. A reading of Rule 99 discloses that the occasion for making an application under Order 21 C.P.C., would arise only after delivery of possession of the property. That being the case, the executing Court was not justified in treating the application, as not maintainable, on the only ground that the E.P. was closed. In fact, the application could not have been maintained, if it was filed before the possession was delivered. On this ground alone, the order deserves to be set aside.
11. However, one important fact brought to the notice of this Court by the counsel for the respondents, would, in fact, obviate the necessity to undertake any further adjudication. It is not in dispute that the petitioner is claiming his rights through his mother. He did not claim any independent right in the suit schedule property. The application filed by him could certainly have been entertained and adjudicated upon, had it been a case where he is claiming his rights independently. However, the record discloses that his mother was very much a party to the suit and decree, being defendant No. 13. She is one of the judgment-debtors. The remedy provided under Rule 99 is for the benefit of 3rd parties, i.e., those who were not parties to the suit. Legal representative of judgment-debtor does not fit into the description "person other than judgment-debtor", employed in Rule 99 of the C.P.C. For all practical purposes, the petitioner has to be treated as defendant and judgment-debtor No. 13. In that view of the matter, the application filed by the petitioner is not maintainable. Therefore, the C.R.P is dismissed, but without costs.