Andhra HC (Pre-Telangana)
Zilludumudi Appa Rao (Died) By Lr vs Veerini Suryanarayana (Died) By Lrs. on 15 December, 2004
Equivalent citations: 2005(3)ALD606, 2005(4)ALT21, AIR 2005 ANDHRA PRADESH 363, 2010 (15) SCC 495, 2005 A I H C 1958, (2005) 4 ANDH LT 21, (2005) 3 ANDHLD 606, 2005 AIHC 1958
JUDGMENT C.Y. Somayajulu, J.
1. Aggrieved by the decree in O.S. No. 211 of 1977 on the file of the Court of the I Additional Subordinate Judge, Visakhapatnam the defendant in that suit preferred this appeal.
2. The deceased first-respondent filed the aforesaid suit for a declaration that the attachment, and sale of the properties held in E.P. No. 399 of 1969 in O.S. No. 126 of 1968 on the file of the Court of the Principal Subordinate Judge, Visakhapatnam is vitiated by fraud and hence is liable to be set aside. His case is that he is the owner of the house bearing Door Nos. 22-31-18/1 to 13 with Municipal Assessment No. 5374 in T.S. No. 444-A in Block No. 5 of Seetharamaswamy Temple Ward at Visakhapatnam, situated in about 278 Sq. yards of site. The deceased first appellant who obtained a money decree for recovery of Rs. 9,540/- and interest in O.S. No. 126 of 1968 on the file of the Court of the Principal Subordinate Judge, Visakhapatnam filed E.P. No. 399 of 1969, and got attached the said site of 278 Sq.yards and figured as the highest bidder for Rs. 11,100/- in the Court sale held on 22-9-1971 and sought delivery of the said site with the building therein in E.A.No. 282 of 1974 though the sale certificate does not show the existence of a building in the property sold. The Executing Court even without taking into consideration the fact that title to the building in the site did not pass to the first appellant allowed the said petition on 27-4-1974. So he preferred a revision in C.R.P. No. 806 of 1974 to this Court, questioning that order but it was dismissed on 3-2-1976. He filed O.S. No. 1109 of 1977 for setting aside the summary order dated 27-4-1974 in E.A. No. 282 of 1974 and obtained an ex parte interim injunction, which was vacated in C.M.A. No. 26 of 1977. Since he was advised to seek a declaration that attachment and sale of his property one vitiated by fraud and for the consequent relief of setting aside the sale, he filed the suit.
3. The case, in brief, of the 1st appellant is that since 1st respondent constructed the building in the site after the same was sold in his favour in E.P. No. 399 of 1969, the suit is not maintainable more so because first respondent withdrew O.S. No. 110 of 1977 without seeking leave of the Court to file a fresh suit. That there was no building in the site, either at the time of attachment or at the time of sale, would be evident from the fact that 1st respondent did not raise any such objection at any stage in the E.P. When the execution Court overruled the objections raised by the first respondent for delivery of the property he filed C.R.P. No. 826 of 1974 in this Court and obtained stay. Even while E.A. No. 282 of 1974 was pending first respondent filed E.A. No. 328 of 1974 which was dismissed on 3-2-1976. There after he filed another E.A. for the same relief and on the same grounds when that petition was rejected he filed C.M.A. No. 508 of 1976 and obtained stay of delivery. After the sale was confirmed on 24-3-1972, and sale certificate was issued and when he sought delivery of the property in E.A. No. 293 of 1972, first respondent filed an E.A., for setting aside the sale on the very same grounds. But that E.A. was rejected. Questioning the said order of rejection first respondent filed C.R.P. No. 1191 of 1972 in this Court and obtained stay of delivery. Later the said revision was dismissed on merits. E.A. No. 286 of 1974 filed by the 1st respondent under Section 47 C.P.C., to set aside the sale on the ground of fraud and material irregularity, is still pending and so it is clear that the suit is vexatious.
4. On the basis of the above pleadings, the Trial Court framed two issues for trial. In support of his case first respondent examined himself as P.W.1 another witness as P.W.2 and marked Exs.A.1 to A.15. First Appellant did not adduce any oral evidence but got marked Exs.B.1 to B.26 on his behalf. The Trial Court holding that the appellant played fraud on the Court held that the first respondent would be entitled to a decree as prayed for on his paying Court fees on half the market value of the suit property on or before 24-4-1982.
5. Both the first appellant and first respondent died during pendency of this appeal and so their legal representatives were brought on record.
6. The contention of the learned Counsel for the appellants is that since the case of the respondents squarely falls within the Section 47 or Rule 90 Order 21 of CPC, the remedy open to them was to file a petition under Section 47 or Rule 90 Order 21 of CPC for setting aside the sale, and no suit for that purpose is maintainable. His next contention is that since first respondent filed O.S. No. 110 of 1977 for similar relief and had withdrawn the same without seeking leave of the Court second suit for the same relief is not maintainable, and in any event the orders in C.R.P. No. 1191 of 1972 (Exs.B.1 and B.2), C.R.P. No. 807 of 1974 (Ex.B.3) operate as res judicata and so the Trial Court was in error in decreeing the suit. The main contention of the learned Counsel for the respondents is that since fraud vitiates everything, and since appellant bought the suit property of the first respondent to sale by playing fraud on the Court, the Trial Court, by giving cogent reasons, held that the sale is liable to be set aside and so there are no grounds to interfere with the judgment and decree of the Trial Court and relied on S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and Ors., and A.P.V. Rajendran v. S.A. Sundararajan and Ors., , in support of his contention. It is his contention that Section 47 CPC would not apply cases falling under Rule 90 of Order 21 CPC and contends that when first respondent filed a petition under Order 21 Rule 90 the same was returned with a direction to furnish security and so the first respondent did not represent the same and since the Executing Court did not adjudicate on the maintainability of a petition under Rule 90 of Order 21 CPC and since order in Exs.B.1 to B.3 are but interlocutory orders they do not operate as res judicata in this suit, and relied on Smt. Gangabai v. Smt. Chhububai, , Thressiamma, alias Valsamma v. Sebastian Mathew, Alias Sunny, AIR 2002 Kerala 1 and Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors., , in support of the said contention. It is his contention that since the first appellant did not go into the witness box to swear to the facts of this case an adverse inference to be drawn against him and relied on Vidhyadhar v. Manikrao and Anr., 1999 (3) ALT 1 (SC) = 1999 (2) ALD (SCSN) 17 and Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Anr., (1993) 3 SCC 457, in support of his contention. It is his contention that since Exs.A11 and 12 show that the municipality filed a suit for recovery of the tax in respect of the house property of the first respondent, and since Exs.A.8 to A.10 extracts from demand register do show the existence of a house in the site even during 1965 to 1968, it is clear that a house 2005(3) FR-F-39 is existing the suit property, and the first appellant, by playing fraud on the Court brought the property to sale as if he is bringing only a vacant site to sale and so, there are no grounds to interfere with the judgment and decree of the Trial Court.
7. The point for consideration is whether first respondent is entitled to relief sought by way of filing a suit?
8. The fact that first respondent was served with notice of the execution petition filed by the first appellant, and also sale proclamations in that execution petition, is not denied or disputed. It is not the case of the first respondent that he objected the statement made by the first appellant that the property sought to be attached, and in fact got attached, was a vacant site. If the building was in existence at the time of attachment, and when the attached property was published for sale after settlement of term of sale and after issuance of sale proclamation, nothing prevented the first respondent from bringing that fact to the notice of the Executing Court. In fact first respondent does not even seen to have objected to the valuation of the property attached and the value stated by the first appellant at the time of settlement of term of sale. He does not even seem to have stated his valuation of the property got attached and brought to sale by the first respondent.
9. The Trial Court placing implicit reliance on Exs.A.8 to A.12 came to a conclusion that a building was in existence in the plaint schedule property even prior to the date of attachment. In my considered opinion Exs.A.8 and A.10 (extracts from the property tax demand registers for the year 1965-66 to 1967-68) are of no help to establish the existence of a building in the suit property at the time of its attachment because they do not contain any house numbers and since vacant land also would be assessed to property tax. In the absence of House Nos or Door Nos in Exs.A.8 to Ex.A.10 it has to be taken that the tax demanded therein was in respect of vacant land.
10. Much reliance cannot be placed on Exs.A.11 and A.12 which are certified copies of the plaint and decree in O.S. No. 1241 of 1974, because the said suit was filed in 1974 long time after the first appellant obtained a decree in 1969 and after he got attached the property in 1969, in an E.P. filed for sale of the property, and since Ex.A.11 plaint does not mention the door no of the house, and merely states that the defendant therein (i.e., first respondent) is the "owner of the house with Municipal Assessment No. 5874 in T.S. No. 44/A in Block No. 5 of Seetharama Swamy Temple Ward in Visakhapatnam Municipality described in the schedule", and the schedule does not contain the door number of the house. At the cost of repetition it should be remembered that first respondent did not even file a counter, as seen from Ex.B.3 order passed by this Court, that a building is in existence in the site got attached by the first appellant and that it is not a mere vacant site. In the above circumstances it is clear that first respondent, with a view to buttress his contention about the existence of a building in the site got attached by the first respondent, could have managed to get a suit filed by the Municipality against him. Therefore, Ex.A.11 and Ex.A.12 are of no help in deciding his case.
11. All these things apart since it is the specific case of the first respondent that first appellant had brought his property to sale by playing fraud, the remedy open to the first respondent was to file a petition to set aside the sale under Rule 90 Order 21 CPC. In fact he filed such a petition but did not comply with the order directing him to furnish security and filed the suit. Since Sub-rule (1) of Rule 92 of Order 21 CPC contemplates the Court passing an order confirming the sale when applications either under Rule 89 and Rule 90 of CPC are not filed, and if filed, were disallowed. Since first respondent did not resubmit the application under Rule 90 of Order 21 CPC, the Executing Court confirmed the sale and issued a sale certificate. So if the relief sought in the suit is granted it amounts to setting aside the order of the Executing Court confirming the Court auction sale in favour of the first respondent. Since Sub-rule (3) of Rule 92 of Order 21 CPC prohibits institution of a suit to set aside an order under Rule 92 of Order 21 CPC, this suit is clearly barred by Rule 92(3) or Order 21 CPC. In fact in Shri Bodraj v. Tamil Nadu Electricity Board and Ors., and in Smt. Bhabani Dasya and Ors. v. Tulsi Ram Keot (Deceased by LRs.) and Ors., AIR 1990 Gau. 90, it is held that when a judgment-debtor seeks to set aside a Court auction sale on the ground of fraud his remedy is by way of a petition under Rule 90 of Order 21 CPC but not by way of a separate suit. Therefore, the suit of the first respondent is liable to be dismissed in view of the bar contained in Sub-rule (3) of Rule 92 of Order 21 CPC.
12. I also find force in the contention of the learned Counsel for the appellants that since first respondent withdrew O.S. No. 110 of 1977 without seeking permission of the Court as contemplated by Rule 1 of Order 23 CPC this suit for almost an identical relief Sought in O.S. No. 110 of 1977 is barred. In view of the above legal position irrespective of the question whether the earlier order passed in Exs.B.1 and B.3 operates as res judicata or not, first respondent cannot be granted the relief sought by way of a suit, and so the Trial Court was error in decreeing the suit. The point is answered accordingly.
13. In the above circumstances, I feel it unnecessary to consider the other contentions raised by the learned Counsel for the parties and so I am not considering the other decisions relied on by the learned Counsel for the parties.
14. In the result, the appeal is allowed and the judgment and decree under appeal are set aside and O.S. No. 211 of 1977 is dismissed No costs.