Andhra Pradesh High Court - Amravati
Jallapalli Srujana Devi vs Kandula Naga Rani on 22 January, 2020
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
S.A.No.607 of 2012,
C.R.P.No.824 of 2019 &
C.R.P.No.2053 of 2019
1
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019
Between:
Jallipalli Srujana Devi, aged 24 years
D/o. Late Ramabhadra Rao,
R/o. D.No.7-73, Merakaveedhi,
Chintalapudi, West Godavari District.
... APPELLANT
AND
1. Kandula Naga Rani, aged 49 years,
W/o. Venkata Rama Naga Ravindra,
R/o.D.No.8-21/17-B, 3rd lane,
Seetharaa Nagar, Guntur, and six others
... RESPONDENTS
DATE OF JUDGMENT PRONOUNCED :22.01.2020
SUBMITTED FOR APPROVAL
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the order? Yes/No
___________________
M. VENKATA RAMANA
MVR,J
S.A.No.607 of 2012,
C.R.P.No.824 of 2019 &
C.R.P.No.2053 of 2019
2
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of
2019
% Dated:22.01.2020
Between:
# Jallipalli Srujana Devi, aged 24 years
D/o. Late Ramabhadra Rao,
R/o. D.No.7-73, Merakaveedhi,
Chintalapudi, West Godavari District.
... APPELLANT
AND
$ 1. Kandula Naga Rani, aged 49 years,
W/o. Venkata Rama Naga Ravindra,
R/o.D.No.8-21/17-B, 3rd lane,
Seetharaa Nagar, Guntur.
2. Jallipalli Rama Bhadra Rao (Died)
3. Jallipalli Sukumari, W/o.Apparao,
Aged 70 years,
R/o.D.No.7-73, Merakaveedhi,
Chintalapudi, West Godavari District
4. Jallipalli Leela Kumari,
W/o. Late Ramabhadra Rao,
Aged 54 years, R/o.D.No.7-73, Merakaveedhi,
Chintalapudi, West Godavari District
5. Konkalla Aruna Jyothi,
W/o. Rama Mohana Rao, aged 36 years,
Housewife, R/o. Chintalapudi,
West Godavari District
6. Jangala Sirisha Rani,
W/o.Venugopal,
Aged 32 years, C/o.Janapriya Sai Nest,
Flat No.216, Jeedimetla, Hyderabad.
7. Jallipalli Lakshmi Vineela,
D/o. Late Ramabhadra Rao,
Aged 22 years, Mother's protection,
R/o.D.No.7-73, Merakaveedhi,
Chintalapudi, West Godavari District
... RESPONDENTS
! Counsel for appellants : Mr. Ch. Srinivas
^Counsel for Respondent No.1 : Mr. K.B.Ramanna Dora
Counsel for respondents 4 to 7 : M. Sasank Reddy
MVR,J
S.A.No.607 of 2012,
C.R.P.No.824 of 2019 &
C.R.P.No.2053 of 2019
3
<GIST :
>HEAD NOTE:
? Cases referred:
1. AIR 1960 AP 592
2. 2002(2) ALD 479
3. AIR 2000 SC 1148
4. AIR 2008 SC 2069
5. (1994) 1 SCC 131
6. AIR 2018 SC 3907
7. AIR 2003 SC 3594
8. (1997) 3 SCC 694
MVR,J
S.A.No.607 of 2012,
C.R.P.No.824 of 2019 &
C.R.P.No.2053 of 2019
4
HON'BLE SRI JUSTICE M. VENKATA RAMANA
S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019
JUDGMENT:
This second appeal is directed against the decree and judgment in A.S.No.126 of 2010 on the file of the Court of learned V Additional District Judge (FTC) West Godavari, at Eluru, dated 02.04.2012. It was an appeal preferred against the order in E.A.No.471 of 2008 in E.P.No.89 of 2008 in O.S.No.150 of 2000 on the file of the Court of learned Additional Senior Civil Judge, Eluru, dated 19.04.2010.
2. C.R.P.No.824 of 2019 is directed against the order of the Court of learned Additional Senior Civil Judge, Eluru in E.P.No.89 of 2008 in O.S.No.150 of 2000, dated 15.03.2019, on the ground that the Executing Court is proceeding with the disposal of the execution petition in spite of pendency of S.A.No.607 of 2012.
3. C.R.P.No.2053 of 2019 is directed against the order in the same execution petition dated 11.07.2019 of the same Court assailing issuance of fresh warrant of delivery of E.P. schedule property.
4. All the parties are closely related.
5. The second respondent was Judgment-debtor (J.Dr.) in E.P.No.89 of 2008 in O.S.No.150 of 2000. The first respondent laid O.S.No.150 of 2000 on the foot of a mortgage deed, dated 26.09.1999 for recovery of money against the second respondent. She is none other than the sister of the second respondent. A preliminary decree was passed in the suit on 19.06.2003 in favour of the first respondent and against the second respondent. The first respondent filed an application to pass final decree MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 5 in terms of the preliminary decree against second respondent and a final decree was passed accordingly, on 27.01.2005.
6. In execution of these decrees, the first respondent levied E.P.No.111 of 2005 against the second respondent for sale of the security offered under the mortgage, viz., the E.P. schedule property. The description of the E.P. schedule property is as under:
"West Godavari District, Chintalapudi Sub-Division, Chintalapudi Mandal, Chintalapudi Village, Merakaveedhi in R.S.No.913/1-A extent of Ac.15.95 cts., out of that property sale is Item No.1:
Extent 183 Sq. Yds with a Mangalore tiled house situated therein bearing D.No.7-73 and Assessment No.884 bounded by:
East: Jallipalli Rajendra Prasad share site 30'
South: Jallipalli Ramabhadra Rao 53 ½'
West: Joint Passage
North: Kurisetti Nageswara Rao site 56' with service Connection No.2406 Item No.2:
An extent of 4-6 Sq. Yds with a well situated therein bounded by East : Compound of G.Rama Krishna Rao 10' South : Item No.1 herein in 4' West : Kurisetti Nageswara Rao 11' North : Panchayat Road 4'
7. The above house was sold in public auction in E.P.No.111 of 2005 on 29.03.2006. The first respondent as the Decree-holder (D.Hr.), with the permission of the Executing Court participated in the auction and became the highest bidder. Therefore, this house was knocked down in her favour. The sale was also confirmed by the Executing Court on 26.09.2007. E.P.No.111 of 2005 was closed by the Executing Court on 18.01.2008 upon issuance of a sale certificate pursuant to confirmation of sale in favour of the first respondent.
MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 6
8. The first respondent also levied E.P.No.89 of 2008, on the strength of the sale certificate so issued, for delivery of possession of the above property under Order XXI Rule 95 CPC.
9. The second respondent died on 18.03.2008. Thereafter, the appellant and respondents 3 to 7 were brought on record as his legal representatives.
10. The appellant is the third daughter of the second respondent. The third respondent is the mother, fourth respondent is the wife and respondents 5 to 7 apart from the appellant are the daughters of the deceased second respondent and the fourth respondent.
11. At this stage, when the Amin of the Court went to the E.P. schedule house, to effect delivery of the same to the first respondent on 11.06.2008, there was obstruction by the appellant stating that she has a right in this property. The appellant filed E.A.No.471 of 2008 raising an objection against delivery of the possession under Order XXI Rules 97 to 101 CPC, requesting to declare that she is the absolute owner of an undivided 1/5th share in the E.P. schedule property.
12. The claim of the appellant is that the E.P. schedule property is ancestral in nature, which was allotted towards his share, to her father, viz., the second respondent in the partition among himself, his father and his brothers in the year 1986. She further claimed that she and respondents 3 to 7 became entitled to this ancestral property, and that she has an undivided 1/5th share there in, since, upon the death of the second respondent, all his estate devolved upon them.
13. The appellant also claimed that in view of nature of this property, the second respondent had no right to mortgage the same in favour of the first respondent and that upon her enquiry, she came to know about the MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 7 suit instituted by the first respondent against the second respondent basing on the registered mortgage deed as well as the proceedings went on including execution levied in E.P.No.111 of 2005 and alleged purchase of this property by the first respondent.
14. Referring to obstruction raised by her on 11.06.2008, when the Court Amin came to this property to execute warrant of delivery, she further stated that the seventh respondent filed O.S.No.186 of 2004 on the file of the Court of learned Principal Junior Civil Judge, Chintalapudi, for partition of E.P. schedule property as well as other properties against other members of the family, wherein a preliminary decree was also passed on 27.08.2005. Thus, according to the appellant, by virtue of this decree also, she became entitled to 1/5th undivided share in the E.P. schedule property, which similar share her sisters are also entitled to. Thus, she claimed that there is a legitimate and independent claim in respect of E.P. schedule property against which the first respondent could not have proceeded, since the second respondent had no right to offer this property as security towards mortgage. Thus stating, she requested to set aside the sale certificate so issued and to declare extent of her share of E.P. schedule property.
15. The first respondent resisted the objection of the appellant in the Executing Court filing a detailed counter denying her claim including as to obstruction made by her for execution of warrant of delivery by the Court Amin and denying the decree passed in O.S.No.186 of 2004 in favour of the seventh respondent in the suit for partition. Her contention is that the petition so filed could not be maintained and denied that the E.P. schedule property is an ancestral extent belonging to the appellant and the petitioners 2 to 7. She further contended that the deed of mortgage executed by the second respondent in her favour was, as manager of the MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 8 joint family and hence, it is binding on the appellant. She further contended that the appellant did not set up any independent right or title to the E.P. schedule property and since her claim is only as a J.Dr., a petition of this nature could not be maintained. Asserting that the mortgage deed executed by her father is binding on her and since it was for family necessity, she contended that the objection so raised by the appellant is not proper. She further claimed that only to harass her, the appellant filed such petition at the stage of delivery of the property. She further contended that in O.S.No.186 of 2004, decrees obtained by her against the second respondent, were not questioned and the decree so passed for partition, is not binding on her.
16. In the course of enquiry, the appellant examined herself as P.W.1 while relying on Ex.A1 and Ex.A2, in support of her contention. The first respondent examined herself as R.W.1 and no documents were marked for her during enquiry.
17. Basing on the material, the Executing Court observed that the mortgage debt contracted by the second respondent was as Manager of the joint family and for legal necessity and not being an Avyavaharika Debt, it is binding on the appellant as well as respondents 3 to 7. It was further observed that the decree in O.S.No.150 of 2008 did not bind the first respondent, since by the date of institution of the suit, the first respondent had already filed the suit based on mortgage, which was decreed in her favour. Thus, holding that the application under Order XXI Rules 97 to 101 CPC cannot be maintained at the instance of the appellant, since sale has already been confirmed, the petition so filed by the appellant was dismissed.
MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 9
18. A.S.No.126 of 2010 preferred by the appellant against the above order was also dismissed observing similarly, concurring with the findings recorded by the Executing Court by the judgment dated 02.04.2012.
19. Sri Ch.Srinivas, learned counsel for the appellant strenuously contended that the approach of both the Courts below has not been proper and that independent right claimed by the appellant as a co- parcener in E.P. schedule property was not properly appreciated. It is further contended that in such an event, when the mortgage was executed in his individual capacity by the second respondent, for his benefit and not for the benefit of the family, the Courts below were not justified in considering him as Manager or Karta of the joint family. It is further contended that the second respondent could have, at best been a trustee holding such property for the benefit of all the co-sharers and failure to consider the effect of the decree in the suit for partition in O.S.No.186 of 2004 in favour of seventh respondent, is improper. Thus, challenging the very maintainability of the suit and consequent execution petition levied basing on the decrees in the above suit, contentions are advanced.
20. It is also contended for the appellant that the effect of depositing the decretal amount, in all, in a sum of Rs.3,21,523/- as per orders in I.A.No.202 of 2010 in the appeal was not properly considered by the appellate Court and it being a payment towards the decretal amount in a mortgage decree in terms of Order 34 Rule 5(3) CPC, the sale so held should have been set aside, including the sale certificate. Failure to appreciate this fact, according to the learned counsel for the appellant had led failure to justice. Thus contending, it is requested for the appellant to allow this appeal setting aside the orders of both the Courts below.
MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 10
21. Sri K.B.Ramanna Dora, learned counsel for first respondent strenuously contended that the appellant and respondents 3 to 7 were aware of the mortgage debt so contracted by the second respondent and consequential proceedings in filing the suit and levying execution proceedings thereon by the appellant. It is further contended for the first respondent that whatever deposit made by the appellant was only pursuant to the directions of the appellate Court and having regard to the nature of debt contracted by the second respondent for his business purpose from the first respondent, the decree so passed in favour of the first respondent did not suffer in any manner nor they get obliterated. Thus, supporting orders under appeal, it is requested to dismiss this second appeal.
22. On behalf of the appellant, in the grounds of appeal questions of law(as claimed) are set out as follows:
a) "Whether the mortgage deed dated 28.09.1999, executed by Ramabhadra Rao be said to have been executed as Manager of Joint Family and is binding on daughters, one of them married in 1998 even before execution of mortgage deed and living in her in-laws' house?
b) When the judgment debtor died, pending execution proceedings, whether the E.P. proceedings can be continued against the L.Rs of deceased judgment debtor without bringing the L.Rs on record?
c) Whether the judgment of the lower appellate court is sustainable in law, when there is no reference and consideration about the deposit of E.P. amount made by the appellant on 29.06.2010 as directed by court in the suit filed for recovery of money basing on mortgage?
d) Whether the E.A.No.471 of 2008 filed by the petitioner-
appellant under Order 21 Rules 97 to 101 of CPC is not maintainable and no relief can be granted to petitioner- appellant?"
MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 11
23. Now, the following points arise for determination:
1. Whether the mortgage debt contracted by the second respondent in favour of the first respondent was for legal necessity of the appellant and the respondents 3 to 7 or it is an Avyavaharika debt, which is not binding on the family?
2. What shall be the effect of depositing certain amounts as per the directions of the appellate Court to the credit of the suit?
3. To what relief?
24. POINT No.1: By the date of the preliminary decree and the final decree in O.S.No.150 of 2000, the second respondent was alive. The debt from the first respondent was contracted for business purpose. By the date of the mortgage, viz., 26-09-1999, the second respondent was running an Electrical goods shop. This fact was elicited in cross- examination of the appellant as P.W.1. According to R.W.1, viz., the first respondent, the debt was so contracted by the second respondent for his business purpose and the family necessities. The appellant did not depose or admit that the debt was so contracted for business purpose by her father or for family necessities. She in fact denied the purpose of this borrowing when suggested in course of cross-examination on behalf of the first respondent.
25. The first respondent also admitted as R.W.1 that the E.P. schedule property was not self-acquired property of the second respondent and thus confirming that this property has been ancestral in nature.
26. The contention of the appellant that she and other sharers are having 1/5th share each as co-parceners along with their family, viz., the second respondent, shall be considered having regard to the purpose for which it was contracted. Borrowing money for the purpose of business by the deceased - second respondent cannot be deemed or considered MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 12 illegal, illegitimate or tainted. In such an event, even if it is considered that the appellant as well as respondents 5 to 7 have an equal share along with their father in the E.P. schedule property, when admittedly the deceased was the Manager or Kartha of this joint family, such debt is binding on them.
27. Sri Ch.Srinivas, learned counsel for the appellant contended that the very institution of the suit in this backdrop, considering the co-parcenery status of the appellant having right and interest in the property offered as security towards this mortgage debt is, improper. Reliance is placed in this context on Order 34 Rule 1 CPC stating that not only the mortgager under the mortgage, but also those having right and interest in the security offered there for, shall be joined as parties, in a suit of such nature.
28. Order XXXIV Rule 1 CPC reads as under:
"1. Parties to suits for foreclosure, sale and redemption:--
Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage."
29. Considering the position of the appellant as well as her sisters, viz., respondents 5 to 7, if the contention on behalf of the appellant is accepted, they should have been the parties to the suit.
30. In support of this contention, attention of this Court is also drawn by the learned counsel for the appellant in DEVATHI SUBBARAYUDU AND OTHERS v. PUVVADI CHINNA VENKATASUBBAIAH1, where, in Para-21 it is held as under:
1
AIR 1960 A.P. 592 MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 13 "21... ... ... ... ...This rule enjoins that all persons interested either in the mortgage security or in the equity of redemption are to be joined as parties to any suit on the mortgage. The object of doing so is not merely to avoid multiplicity of suits, but also to enable the, interested parties to raise necessary defences open to them in law, so that the same may be taken into consideration in dealing with the claim under the mortgage and in passing the preliminary decree thereon.
That this is imperative is also inferable from the fact that Order XXXIV, R.4, C.P.C. provides for the passing of a preliminary decree fixing a time for payment into court of the amount for which the preliminary decree had been made, and in default whereof giving of a right to the plaintiff therein, to apply for a final decree directing that the mortgage property or sufficient part thereof be sold and the proceeds of sale paid into Court and applied in payment of what has been found due under the preliminary decree. .... ..... ...."
31. Further reliance is also placed in ARETI MARAMMA v. STATE BANK OF INDIA, SECUNDERABAD AND OTHERS2. In this well considered judgment of Sri L.Narasimha Reddy, J., (as his Lordship then was) basing on the fact situation, it is observed in Para-27, as under:
"27. A consideration of the facts of the case and the decided cases referred to above leads to the conclusion that a decree in a mortgage suit does not bind a person having interest in the equity of redemption if he was not a party to the suit and the mortgagee will have the remedy of instituting a fresh suit against a person so omitted if the cause of action is within the limitation and that the defect on account of non- compliance of Order 34, Rule 1 which crept into the decree cannot be cured on account of the person so omitted coming to the Court at a later stage."
32. Reasons are cited supra holding that the mortgage debt of the second respondent payable to the first respondent was not a tainted transaction. Even if the contention of the appellant is accepted that she 2 2002(2) ALD 479 MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 14 stood in the position of a co-parcener, it binds her, in these circumstances, since it was entered into by the second respondent as Karta or Manager of the joint family for his business purpose, which was a legal necessity. Therefore, the appellant and other co-parceners, when, are not the parties to the suit, it cannot have any effect. Obviously, the second respondent did not raise such objection in the suit. He suffered the decrees and they became final. At this stage, none can go behind the decrees.
33. Rightly in this context, Sri K.B.Ramanna Dora, learned counsel for the first respondent referring to the status of a Karta in Hindu joint family and right to encumber or alienate the property for legal necessities, as was in the case of the second respondent herein, relied on KEHAR SINGH (D) THROUGH LRs. & OTHERS v. NACHITTAR KAUR & OTHERS3. Basing on the facts, in paras 26 and 27, it is observed thus:
"26. It has come in evidence that firstly, the family owed two debts and secondly, the family also needed money to make improvement in agriculture land belonging to the family. Pritam Singh, being a Karta of the family, had every right to sell the suit land belonging to family to discharge the debt liability and spend some money to make improvement in agriculture land for the maintenance of his family. These facts were also mentioned in the sale deed.
27. In our considered opinion, a case of legal necessity for sale of ancestral property by the Karta (Pritam Singh) was, therefore, made out on facts. In other words, the defendants were able to discharge the burden that lay on them to prove the existence of legal necessity for sale of suit land to defendant Nos.2 and 3."
34. The partition decree passed in O.S.No.186 of 2004 filed at the instance of the seventh respondent herein not only in respect of E.P. 3 AIR 2018 SC 3907 MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 15 schedule property but also others, in the backdrop of the material on record and proved fact situation, cannot help the appellant in any manner, particularly when the debt so borrowed by the second respondent from the first respondent, binds them.
35. The appellant also did not raise this objection in her petition in the Executing Court nor it was canvassed in the appellate Court. Therefore, for the first time in this second appeal, this ground is urged for her and without any basis in the pleadings for the appellant. On these twin grounds, this contention has to be rejected. Thus, this point is held against the appellant and in favour of the first respondent.
36. POINT No.2: Other contention raised by Sri Ch.Srinivas, learned counsel for the appellant is, basing on the decretal amount deposited by the appellant. Pursuant to the orders in I.A.No.202 of 2010 in A.S.No.126 of 2010 of the appellate Court, a sum of Rs.3,21,523/- was deposited on behalf of the appellant, stated to be towards full satisfaction of decretal amount in E.P.No.89 of 2008 on 29.06.2010.
37. This contention though seemingly innocuous, it has substance in it. In the sense, the attempt of Sri Ch.Srinivas, learned counsel for the appellant is to invoke a facility provided for the J.Dr. in Order 34 Rule 5 (1 and 2) CPC, to set aside the sale. It is desirable to extract the same for facility, hereunder:
"5. Final decree in suit for sale: --
(1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order--
MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 16
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and if necessary, --
(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necessary,--
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into Court by him, together with a sum equal to five percent thereof."
38. In terms of this rule, the J.Dr. is entitled to deposit the amounts due as directed in the preliminary decree and effect of it is to pass a final decree with consequences stated in clauses a, b & c of sub-rule 1 CPC, including setting aside a sale in execution of the decrees. But, such exercise shall be undertaken before confirmation of sale in execution.
39. Reliance is placed in KARAITHILAL v. RAMINDER KAUR4 contending that such deposit can be made even during pendency of appeal since confirmation of sale and issuance of sale certificate thereby would be in a nebulous state when an appeal is pending against an order refusing to set aside the same. Relevant observations in the above ruling are in paras 10 and 11 and they are as under:
"The entire case law was reviewed by this Court in a recent decision in U. Nilan v. Kannayyari (Dead) through LRs. (1999) 8 SCC 511 : 1999(6) Scale 358 : (1999) 7 JT (SC) 621 : (1999 4 AIR 2000 SC 1148 MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 17 AIR SCW 3795 : AIR1999 SC 3750) in which also the Court had formulated the following question:
"What is the meaning of the phrase "before the confirmation of sale" may now be considered in the light of other relevant provisions of the Code of Civil Procedure."
11. The above question is identical to the question framed by the Division Bench of the High Court in this case. This Court, on a consideration of a number of decisions, including the decision of this Court in Hukamchand's case (AIR 1968 SC
86)(supra) laid down that if an appeal was pending against an order refusing to set aside the sale, the confirmation of sale as also the issuance of Sale Certificate would be in a nebulous state and, consequently, it would be open to the judgment- debtor to invoke the provisions of Order 34, Rule 5, C.P.C. and make the necessary deposits to save his property from being transferred to a third person or, may be, to the decree- holder, in execution of the decree passed in the mortgage suit. It may be mentioned that in U.Nilan's case (1999 AIR SCW 3795 : AIR1999 SC 3750) (supra), reliance was also placed upon the decision of this Court in Magarilal v. Jaiswal Industries, Neemach (1989) 4 SCC 344 : 1989 (3) SCR 696 : AIR 1989 SC 2113 in which it was held that the sale does not become absolute or irrevocable merely on passing an order confirming the sale under Order 21, Rule 92, but it would attain finality on the disposal of the appeal, if any, filed against an order refusing to set aside the sale."
40. Reliance is further placed for the appellant in KANCHERLA LAKSHMINARAYANA v. MATTAPARTHI SHYAMALA5. However, this ruling is with reference to application of Order XXI Rule 58 CPC. Desh Bandu Gupta Vs. N.L.Anand & Rajinder Singh6 is referred-to, in para-15 of this ruling extracting observations in para-5 therein, which are as under:
"The auction-purchaser gets a right only on confirmation of sale and till then his right is nebulous and has only right to consideration for confirmation of sale. If the 5 AIR 2008 SC 2069 6 (1994) 1 SCC 131 MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 18 sale is set aside, apart from the auction-purchaser, the decree holder is affected since the realization of his decree debt is put off and he would be obligated to initiate execution proceedings afresh to recover the decree debt."
41. These contentions on behalf of the appellant cannot have any bearing in the present case. The reason is that no petition in terms of Order 34 Rule 5 CPC upon depositing such amounts contemplated therein, was filed by the appellant in the Executing Court. Even when the appeal was pending, such effort was not made by her, in view of the observations of Hon'ble Supreme Court referred to above.
42. Added to it, it was never the claim of the appellant that she is pursuing this matter as a legal heir of the J.Dr. viz., the second respondent and stepping into his shoes. All the while, her claim has been that she has an independent right and 1/5th share in the E.P. schedule property. In view of these circumstances, it is not open for the appellant to raise such contentions for the first time in this second appeal and that too without laying a foundation at an appropriate stage.
43. Further, the amount deposited, as rightly pointed out for the first respondent by Sri K.B.Ramanna Dora, learned counsel, was on account of compelling circumstances, to meet the condition imposed by the appellate Court, while granting stay of execution of the decree in the suit. Therefore, as rightly contended for the first respondent what was deposited by the appellant at that stage, cannot be driven to be taken advantage of in this second appeal to raise such contentions.
44. Therefore, the contentions advanced by Sri Ch.Srinivas, on behalf of the appellant cannot stand.
MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 19
45. The Executing Court in its order observed that a petition of this nature could not have been filed by the appellant invoking Order XXI Rule 97 CPC. The Executing Court seemed to have lost sight of its order in same E.A.No.471 of 2008 dated 19.11.2009 rejecting the preliminary objection raised on behalf of the first respondent as to maintainability of a petition of this nature, directing enquiry in the matter. Even otherwise, when the appellant has asserted her independent right and title having 1/5 share in E.P. schedule property as a third party, she has right to object delivery of possession in terms of Order XXI Rule 97 CPC.
46. In H.SESHADRI v. K.R.NATARAJAN AND ANOTHER7, when the applicant under Order XXI Rules 97 and 99 CPC claims a right independent of the J.Dr, as asserted by the appellant herein it is as under:
"For the purpose of considering an application under Order XXI Rules 99 and 100 of the Code of Civil Procedure what was required to be considered was as to whether the applicant herein claimed a right independent of the judgment-debtor or not. A person claiming through or under the judgment- debtor may be dispossessed in execution of a decree passed against the judgment-debtor but not when he is in possession of the premises in question in his own independent right or otherwise."
47. It is also useful to note the observations in BRAHMDEO CHAUDHARY v. RISHIKESH PRASAD JAISWAL AND OTHERS8 in para-16 and they are as under:
"Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree- holder against such an obstructionist in only under Order XXI Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on re- issuance of warrant for possession under Order XXI 7 AIR 2003 SC 3594 8 (1997) 3 SCC 694 MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 20 Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI Rule 97."
48. Therefore, the attempt of the appellant in this respect, has to be rejected and deposit of the amount by virtue of interim orders passed in the appeal cannot clothe her with any right, as contemplated by Order 34 Rule 5 CPC referred to above. Thus, this point is answered.
49. POINT No.3: In view of the findings on points 1 and 2, the second appeal has to be dismissed. Consequently, both the CRPs shall also be dismissed.
50. In the result, S.A.No.607 of 2012 is dismissed confirming the orders of the Courts below. Parties are directed to bear their own costs throughout. C.R.P.No.824 of 2019 and C.R.P.No.2053 of 2019 are also dismissed consequently. Interim orders, if any, stand vacated. All pending petitions, stand closed.
____________________ M. VENKATA RAMANA, J Dt:22.01.2020 Rns MVR,J S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 21 HON'BLE SRI JUSTICE M. VENKATA RAMANA S.A.No.607 of 2012, C.R.P.No.824 of 2019 & C.R.P.No.2053 of 2019 Date:22.01.2020 Rns