Telangana High Court
Palvancha Rama Rao vs Narender Maniyar on 19 July, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION No. 1596 of 2024
ORDER:
1. The present Civil Revision Petition is filed aggrieved by the order dated 30.04.2024 in I.A. No.7 of 2022 in I.A. No.3 of 2022 in O.S. No.31 of 2022 passed by the II Additional District Judge, at Khammam.
2. The petitioner herein is the plaintiff in the suit filed for recovery of money. The Respondents herein are the defendants in the suit.
3. Heard Sri. P. Rama Sharana Sharma, learned Counsel for the petitioner, Sri. R. Dheeraj Singh, learned Counsel for the respondent No.1 herein and perused the record.
4. Along with the suit the petitioner herein had filed an interlocutory application numbered as I.A. No.3 of 2022 under Order 38 Rule 5 of the Code of Civil Procedure, 1908 (for short 'the Code') seeking attachment of the petition scheduled properties as a security. The Court below vide order dated 17.06.2022 allowed the said application.
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5. Subsequently the respondent No.1 herein had filed the underlying interlocutory application in I.A. No.3 of 2022, seeking replacement of Item No.2 in the petition scheduled property on the ground that the said property was sold prior to the attachment order dated 17.06.2022.
6. The proposed alternate property is a parcel of vacant land admeasuring Ac.9.05 gts, equivalent to 44165 Sq. Yards in Sy. No. 46, situated at Singareny Village and Mandal, Khammam District, Telangana.
7. The Court below on hearing both parties allowed the said application. The present Civil Revision Petition is filed aggrieved by the said order.
8. Learned Counsel for the petitioner herein contends that, the impugned order is bad in law, as the Trial Court failed to consider that the alternate property proposed to replace item No.2 was already under attachment in another suit vide O.S. No.36 of 2022 before the I Additional District Judge, Khammam. It is further contended that the respondent herein had not established his title to 3 the said alternate property; and that no concrete proof was filed to establish that the proposed property was free from encumbrances.
9. Per contra, learned Counsel for the respondent No.1 while defending the impugned order contends that the property originally listed under item No.2 was alienated before the order of attachment was made; and thus, the initial order of attachment against item No. 2 was infructuous. Therefore, it is contended that the impugned order replacing the said property did not suffer from any infirmity. In support of his case reliance is placed on the decision in Hamda Ammal Vs. Avadiappapathar1.
10. Learned Counsel for the respondent No.1 herein further contends that, the proposed alternate property was exclusively owned by the respondent No.1 herein; and that the valuation Certificate dated 12.07.2022 issued by the Sub-Registrar, Khammam Rural valued the property at Rs.9,27,46,500/- (Rupees Nine Crores Twenty Seven Lakhs Forty Six thousand and Five Hundred only). Thus, as the market value of the proposed property 1 (1991) 1 SCC 715 4 was much higher than the value of the suit, it is contended that the impugned order did not suffer from any infirmity.
11. I have taken note of the contentions urged.
12. At the outset, it is trite law that the scope of revision under Article 227 of the Constitution of India is limited. The High Court while entertaining its supervisory jurisdiction, cannot sit in appeal over the order passed by the Trial Court. Interference is to be exercised only when the impugned order suffers from patent illegality, or manifest procedural irregularity or the Court passing such order lacks jurisdiction (See: Shalini Shyam Shetty and Ors. Vs. Rajendra Shankar Patil 2).
13. In the facts at hand, the petitioner herein had not raised the plea that the proposed alternate property offered by the respondent No.1 herein was already subject to attachment in O.S. No.36 of 2022 before the Trial Court. Further, for reasons best known to the petitioner, the alleged attachment order passed in O.S. No.36 of 2022, was not placed before this Court. Therefore, the said plea 2 (2010) 8 SCC 329 5 cannot be examined for the first time by this Court while exercising its supervisory jurisdiction.
14. Further, perusal of the record indicates that the petitioner herein vide his counter dated 21.07.2022, had raised several grounds namely: that the petitioner herein had already alienated the proposed alternate land to one Mr. Puchakayala Venkateshwarlu vide agreement of sale dated 18.01.2022; that the said Mr. Puchakayala Venkateshwarlu had allegedly paid a sum of Rs.1 Crore to the credit of Mahesh Co-Operative Bank, Gandhi Chowk, Khammam in order to release the said property from mortgage; and that the petitioner herein had made a representation to the District Collector, Khammam to rectify the market value vide proceedings E3/1811/M.V/2020 dated 25.02.2022. It is averred in the counter dated 21.07.2022, that the relevant documents have been attached by the petitioner in proof of the aforesaid averments.
15. However, it appears that the impugned order was passed without considering any of the aforesaid averments. That apart, the Trial Court had neither marked the document filed by either of the parties nor recorded the documents considered by it while passing 6 the impugned order. Therefore, this Court is of the view that there is patent irregularity in the hearing and adjudication of the underlying application.
16. Further, the reliance placed by learned Counsel for the respondent No.1 herein on Hamda Ammal's case (supra) does not advance his case that the proposed property was rightly replaced, since the Hon'ble Supreme Court had only held that a sale which took place before the order of attachment was passed being first in time, prevails over the latter.
17. Therefore, this Court deems it appropriate to remit the matter to the Trial Court for consideration afresh, while taking into account the pleas raised by the parties, nature of the property, and documents relied by both the parties in support of their contentions.
18. At this juncture, considering that substantial rights of the parties are involved, and the nature of the controversy between the parties, this Court is of the view that it is just to permit the petitioner to raise the plea that the proposed property was subjected to attachment in O.S. No.36 of 2022, before the Trial Court. 7
19. Accordingly, this Civil Revision Petition is allowed. The matter is remitted to the Trial Court for consideration afresh. The Trial Court is directed to adjudicate the matter and pass appropriate orders within one month from the date of receipt of a copy of this order. No order as to costs.
Consequently, miscellaneous petitions pending if any shall stand closed.
___________________ T. VINOD KUMAR, J Date: 19.07.2024 VSV/MRKR