Andhra HC (Pre-Telangana)
Gangineni Damodar Naidu And Anr. vs Kurapati Kondaiah Naidu on 16 October, 2006
Equivalent citations: 2007(1)ALD106
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Defendants in O.S. No. 12 of 1990, on the file of the Senior Civil Judge, Kavali, filed this second appeal, aggrieved by the judgment and decree dated 20.5.2003, rendered by the Court of IV Additional District Judge, Nellore, in A.S. No. 10 of 1999.
2. The respondent filed the suit for the relief of declaration of his title over the suit schedule property, comprising of three items of agricultural lands, and for consequential injunction against the appellants herein, from interfering with his possession and enjoyment. The case of the respondent herein, as presented in the plaint, is, as under:
3. Respondent, his brother-Malakondaiah Naidu, and their father Seshaiah Naidu constituted a joint family. It possessed of several items of agricultural lands, and other properties. A partition took place in the year 1980, in the presence of well-wishers and close relations. The plaint schedule property and a cattle shed, fell to the share of the respondent. About 13 acres of wet land and 20 acres of dry land fell to the share of his brother, in the partition. The father was also allotted some items of property. Ever since the date of partition, they are in exclusive possession and enjoyment of their respective shares.
4. The 1st appellant is the transferee of a decree in O.S. No. 32 of 1972 on the file of the Senior Civil Judge, Kavali, in which, the elder brother of the respondent figured as the sole judgment-debtor. The suit schedule property was sought to be proceeded against, in E.P. No. 12 of 1984. Respondent filed E.A. No. 173 of 1985, under Rule 58 of Order 21 C.P.C, and, since the sale of the property was held, by the time the application was filed, he had to file the present suit, for the relief, referred to above.
5. The 1st appellant filed a written-statement and the same was adopted by the 2nd appellant. The plea of the respondent, that a family partition took place in the year 1980; was denied. It was asserted that the suit schedule lands are the exclusive property of the judgment-debtor, i.e. Malakondaiah Naidu. It was alleged that one Syama Sundara Naidu obtained decree in OS. No. 32 of 1972 against Malakondaiah Naidu, on 6.11.1973, and after making some efforts, to execute the decree, he transferred it, in favour of the 1st appellant. The sale of the property was said to have been held, on 23.4.1985, and that it was confirmed on 5.6.1987. E.A. No. 501 of 1987, filed for delivery of possession; was pending, by the time the suit was filed. It was pleaded that the suit was filed in collusion with the judgment-debtor.
6. The trial Court dismissed the suit, through judgment dated 23.6.1998. A.S. No. 10 of 1999 preferred by the respondent, was allowed. Hence, this second appeal.
7. Sri. Y. Visweswara Rao, learned Counsel for the appellants submits that the suit was not maintainable, inasmuch as the respondent filed an application under Rule 58 of Order XXI CPC, and while getting it dismissed as not pressed, permission of the Executing Court was not obtained, to file the present suit. He contends that the finding recorded by the trial Court, that the respondent herein failed to prove the partition; was reversed by the lower appellate Court, without any basis. He further submits that, all disputes, arising out of the execution of a decree, are required to be decided in the same proceedings, and not by way of a separate suit. He made extensive submissions, touching on the merits of the matter and Section 47 of Rule 89 of Order 21 CPC. He urged that the present suit, without the relief for declaration, vis-a-vis, the sale of the properties in execution; is not maintainable. Learned Counsel cited precedents, in support of the points urged by him.
8. Sri. K.G. Krishna Murthy, learned Counsel for the respondent, on the other hand, submits that 1st appellant is behind the prolonged litigation, spread over the last three-and-half decades. He contends that the so-called promissory note was obtained by the 1st appellant, and he transferred the same in favour of one Sri Syama Sundara Naidu, who in turn, filed O.S. No. 32 of 1972, and obtained a decree against the brother of the respondent herein. He submits that by managing the transfer of the decree, in favour of his close relation i.e. the 2nd appellant, the 1st appellant had ultimately emerged as the highest bidder, to purchase the valuable property, at a throwaway price. Learned Counsel objects to the plea advanced on behalf of the respondent, on the basis of Rule 89 of Order 51; on the ground that it was not urged before the Courts below. He too, had placed reliance upon several judgments, in support of his contention.
9. In a way, the second appeal can be said to be the continuation of the proceedings, instituted for enforcement of a promissory note, executed by the brother of the respondent, in favour of the 2nd appellant herein. The promissory note was transferred in favour of one Syama Sundara Naidu, and he in turn, filed O.S. No. 32 of 1972. The suit was decreed. Two E. Ps. namely, E.P.Nos. 13 of 1977 and 49 of 1978, filed by him; were dismissed. At that stage, he transferred the decree, in favour of the 1st appellant. Fresh E.P., being E.P. No. 12 of 1984 was filed against the judgmentdebtor. On coming to know that his properties are being proceeded against, the respondent filed E.A. No. 173 of 1985, under Rule 58 of Order XXI CPC. Realizing that the sale of the property was held, by the time the EA was filed, he did not proceed with it and filed the present suit. The appellants filed written statements, the gist of which, was mentioned in the preceding paragraphs. The trial Court framed two issues, viz.
(1) whether the suit schedule properties have fallen to the share of the respondent herein, in the partition, as claimed by him; and (2) whether he is entitled for the relief of declaration and injunction, as prayed for.
10. On behalf of the respondent, PWs. 1 to 4 were examined and Exs. A1 to A9 were marked. On behalf of the appellants, DWs. 1 and 2 were examined, and Exs. B1 to B8 were marked. The trial Court dismissed the suit, but it was decreed, in the appeal preferred by the respondent.
11. In view of the submissions made by the learned Counsel for the parties, the following questions arise for consideration, viz.,
(a) Whether the suit filed by the respondent herein, without obtaining permission of the Executing Court, is barred by Law;
(b) Whether a separate suit is maintainable, in the facts and circumstances of the case, to annul the effect of a decree; and
(c) Whether the partition pleaded by the respondent, was proved
12. The facts, that led to the filing of the second appeal, have already been stated, with permissible limits of brevity.
13. It is a matter of record, that, before filing the present suit, the respondent filed LA. No. 173 of 1985 in E.P. No. 12 of 1984 in O.S. No. 32 of 1972, under Rule 58 of Order, XXI CPC. He was not aware of the stage of the proceedings, when the application was filed. It ultimately emerged that the sale was held, much before he filed the application. Proviso to Sub-rule (1) of Rule 58 prohibits the filing of claim, or objection, if the sale of the attached property was held. Sub-rule (5) of Rule 58, however, keeps the right of a claimant, intact, to file a suit, if the claim made by an applicant is not entertained, or is barred. It is difficult to import the principle underlying Order XXIII, into such a situation. The occasion to seek permission of the Court, to withdraw the proceedings, with leave to institute them, at a later point of time, would arise, only when such proceedings were otherwise maintainable. When they are barred by Law, it is too remote to contemplate the permission, and leave of the Court, to institute proceedings in a proper forum, under the relevant provision. A Full Bench of this Court in the State Bank of Hyderabad, Secunderabad Branch v. Susheela 1979 (2) ALT 25, held that, a subsequent suit, filed by a claimant in execution proceedings, is not barred.
14. Further, the bar against a different set of proceedings, on account of withdrawal or dismissal of earlier proceedings, on the same issue, is a facet of the principle of res judicata. In P.C. Seethamma v. Municipal Corporation, Hyderabad 2004 (1) An. WR 155(AP) : 2004 (3) ALD (NOC) 239, it was held that the following ingredients must exist, to apply the said principle.
(1) The subject-matter of the former and subsequent judicial proceedings was the one and the same;
(2) The parties in the subsequent proceedings are the same as in the previous proceedings or claiming through the latter;
(3) The Court which decided the previous proceedings must have had the competence to decide the issue involved in the subsequent proceedings; and (4) The substantial issue in the subsequent proceedings might have been heard and finally decided by the Court in the previous proceedings.
15. In V. Rajeshwari v. T.C. Saravanabava , the Supreme Court held that, even where an adjudication, on merits, was rendered, in respect of part of the dispute, it cannot operate as res judicata, as regards the rest of the dispute. In the instant case, the claim petition submitted by the respondent in the execution proceedings was not maintainable, and no order was passed on it, on merits. Therefore, it cannot be said that the present suit is barred, on the ground that the leave of the Executing Court was not obtained, before filing it.
16. The emphasis under CPC is, to ensure that all the questions, relating to a dispute, from the stage of institution, till execution, are decided in the same set of proceedings. Filing of separate suits, wherever permissible, is specifically provided under several provisions. Therefore, it needs to be seen, as to how far the bar against institution of separate suit operates, in the present set of proceedings.
17. The discussion in this regard, must start, with reference to Section 47. The very heading of the section indicates that all questions relating to the execution of a decree must be decided by the Court, which executes the decree and separate suits for this purpose are barred. However, the mandate contained in Section 47 is directed against "parties to the suit". It is therefore, axiomatic, that the bar does not operate against persons, who are not parties to the suit.
18. Rule 58 of Order XXI directs that all claims, or objections to, attachment of any property, in execution of a decree, must be preferred before the Executing Court itself. This provision is mainly intended to deal with the claims, or objections of third parties. The reason is that, a judgment-debtor cannot object for proceeding against an item of property, if he has right and title in it, and he should not bother himself much, if he does not hold title, upon it. Apart from enabling third parties, to put forward their claims in the execution proceedings, Rule 58 prohibits filing of separate suits. However, the rule draws a dead line, in the matter of presentation of the claims. No claim can be entertained, after the attached property is brought to sale.
19. The stage subsequent to the attachment is dealt with under several provisions. Rule 80 onwards deal with the sale of the property. According to Rule 89, any person, claiming interest in the property sold in execution, may apply to the Executing Court, to have the sale set aside, by paying 5% of the purchase money, to the auction purchaser, and remitting the amount, specified in the sale proclamation to be paid to the decree-holder. Rule 90 provides for setting aside of a sale, on the grounds of irregularity or fraud. Unlike Rule 58; Rules 89 and 90 of Order XXI CPC, do not prohibit filing of separate suits, for declaration of rights of a third party, vis-a-vis the property, which is sold in execution.
20. Rules 97 to 106 contain the procedure for adjudication of the claims, which crop up, at the time of delivery of possession. The claims, as to resistance or obstruction for recovery of possession, be it, by judgment-debtors, or third parties; are required to be adjudicated in the execution proceedings, themselves, and filing of separate suit is barred by Rule 101.
21. The facts of the present case, if at all, attract the stage of sale, and are governed by Rules 89 and 90. Strictly speaking, the appellants cannot advance this plea, since it was not pleaded before the trial Court, or the appellate Court, nor any ground, on the basis of this provision, is pleaded in the second appeal. All the same, with a view to avoid any scope for procrastination of proceedings, the plea is dealt with, notwithstanding the objection raised by the respondent. It has already been pointed out that, filing of separate suits is barred under Rules 58, dealing with attachment; and 101, concerning resistance and obstruction to delivery of possession. The omission to incorporate in the clause, prohibiting filing of separate suits, to deal with a situations, arising at the stage of sale, has got its own significance. The matter can be viewed from a different angle also.
22. Order XXI provides for adjudication of claims, on par with suits, in the execution proceedings itself, at the stages of attachment and recovery of possession; whereas it does not contain similar provision, in relation to the stage of sale. The right of an individual to file a suit, is almost universally recognized under the CPC and any bar to it, whether under CPC, or any other law, for the time being in force, must be specific. A suit cannot be barred on mere surmises and inferences. Therefore, this issue is liable to be answered in favour of the respondent.
23. Learned Counsel for the appellants relied upon the judgment of the Supreme Court in Janak Raj v. Gurdial Singh . In that case, the Supreme Court considered the consequences of the reversal of a decree, upon the sale, brought in execution of the same. It was held that the title of the purchaser relates back to the date of sale, and the reversal of the decree does not have any bearing on the sale. An important distinguishing feature is, that the said judgment does not relate to the adjudication of rights of third parties, vis-a-vis the property sold in execution. A third party does not stand on the same footing, as the decree-holder, or judgment-debtor, as the case may be. Almost to the same effect is the principle laid down by the Supreme Court in Ashan Devi v. Phulwasi Devi .
24. Reliance is also placed upon the judgment of the Karnataka High Court in Chikkathamaiah v. Chikkahutchaiah , and it is contended that, unless the relief of cancellation of the sale deed is prayed for, mere declaration would not subserve the purpose, in such cases. That case did not relate to the execution proceedings, at all. The property, in respect of which, declaration was sought; was sold in favour of third parties and the plaintiffs however did not choose to seek a declaration vis-a-vis the sale.
25. Though the third question is mostly on facts, it had ample traces of law in it. The respondent specifically pleaded that partition took place between himself, his brother and father in the year 1980. Ex. A8 is the notes of partition. PW.4 was a person, who has participated in the partition, and had clearly deposed the manner in which the partition took place, and the notes of partition was prepared. The trial Court disbelieved the same on the sole ground that it was not registered, and expressed the view that such unregistered document can be brought about, at any point of time. If Ex. A8 were to have been considered in isolation, the view expressed by the trial Court can be approved, to a larger extent.
26. Ex. A7 is a registered Will, dated 3.2.1983, executed by the father of the respondent. The trial Court did not entertain any doubt, about the genuinity of Ex.A7, and on the other hand, took it as a valid and genuine document. The date of Ex.A8, the notes of family partition, is 15.5.1981. In Ex. A7, which is executed almost after two years after Ex.A8; there is a clear recital to the effect that a family partition has taken place, and that the executant intends to bequeath his share of properties to the legatees, mentioned therein. By the time the suit was filed, the father of the respondent died, and Ex.A7 became enforceable. One does not need more clinching evidence than this, to prove the factum of partition. The entries in the revenue records, relating to the contemporaneous period, marked as Exs. A1 to A6, clearly demonstrated that the respondent started exercising rights of exclusive ownership over the suit schedule properties, soon after the partition. The lower Appellate Court proceeded on an hyper-technical manner, while recording its finding on this aspect, as is evident from the following observation:
...According to the contents in Ex. A7 the brothers of plaintiff and their father got separated only in the year 1982, but not in the year 1980. Therefore the documentary evidence filed by plaintiff in Ex.A7 itself is sufficient to disbelieve the case of plaintiff that himself, his brother and father partitioned their properties in the year 1980....
It should not have been made any difference, whether the partition took place in the year 1980 or 1982. Hence, the third question is also answered against the appellants.
27. For the foregoing reasons, this Court is of the view that the second appeal is bereft of any merits, and the same is accordingly dismissed. There shall be not order as to costs.