Telangana High Court
Kelam Hanumantha Rao vs Gattu Ademma Adilakshmi on 16 November, 2018
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
CIVIL REVISION PETITION No.3482 OF 2018
ORDER:
The civil revision petition is filed under Section 115 of C.P.C questioning the order dated 21.03.2018, passed by the Principal Junior Civil Judge, Sattenapalli in E.A.No.50 of 2017 in E.P.No.12 of 2014 in O.S.No.89 of 2011, wherein and whereby, the application filed by the petitioner-J.Dr.No.1 under Sections 47 and 151 of the Code of Civil Procedure, seeking to set aside the decree passed in O.S.No.89 of 2011, to ascertain the existence of the E.P schedule property and any violation of the decree passed by the Court below, was dismissed.
The averments made in the affidavit filed in support of the revision petition would show that the land admeasuring Ac.0.66 cents, situated at D.No.190/4C of Thammavaram Village belongs to Kelam Bala Kotaiah, who had a son by name Subbaiah and the said Subbaiah was having four sons viz., 1. Balakotaiah, 2. Bapaiah, 3. Venkateswarlu and 4. Ramaiah. Bala Kotaiah was having three sons viz., Subba Rao, Venkateswarlu and Bala Subba Rao, Bapaiah is having two sons viz., Anjaneyulu and Venkata Subbaiah. Ramaiah is haing four sons viz., Anjaneyulu, Hanumantha Rao, Bapaiah and Bala Kotaiah. The above said persons being a Hindu joint family gifted an extent of Ac.0.21 cents out of the said Ac.0.66 cents to 75 Tyalluru Panchayat Samithi and executed a registered gift deed dated 8.2.1966. The remaining Ac.0.45 cents and other properties were partitioned among the above persons. In the said partition, vacant site to an extent of Ac.0.05 cents fell to the share of one Bapaiah, the son of Ramaiah. After the death of Bala Kotaiah, his wife Narasamma succeeded the said house. Bapaiah is having only 2 one daughter by name Venkayamma and after the death of Bapaiah his daughter Venkayamma succeeded to the extent of Ac.0.05 cents in D.No.190/4C of Thammavaram Village. From the said Venkayamma, petitioner/J.Dr No.1 purchased the E.P Scheduled property for valuable consideration of Rs.37,000/- on 18.11.2010. Since then the petitioner is said to be in possession and enjoyment of the said extent of Ac.0.05 cents. It is stated that the respondent/D.Hr, none other than the sister of the said Narasamma, colluded with Narasamma and created a sale deed in her favour, in relation to Ac.0.06 cents out of Ac.0.66 cents i.e. E.P. schedule property, by mentioning wrong boundaries. It is also stated that the respondent/D.Hr is neither in possession nor is having title over the land admeasuring Ac.0.05 cents at any point of time. In order to grab the E.P schedule property, the 1st respondent filed the present Execution Petition alleging violation of decree. Hence, pleaded that when the suit itself is not maintainable, E.P is also not maintainable.
Notice was served on the respondent/D.Hr who opposed the application.
Counter filed by the respondent-D.Hr denying the averments made and stated that the petitioner/J.Dr without disclosing the real facts filed the present petition and that he never filed any piece of document to prove his contention. The petition is belated one and there are no tenable grounds to allow the petition and hence prays for dismissal of the same.
After hearing both sides and after considering the material available on record, the Court below dismissed the impugned application on the ground the initial burden lies on the petitioner/JDr to prove the case and that the petitioner failed to prove his plea.
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A perusal of the record would show that E.P.No.12 of 2014 was filed by the Decree Holder praying the Court below to send the Judgment Debtors to civil prison, since they have violated the decree passed in O.S.No.89 of 2011. However, when the said E.P was posted for cross-examination of P.W.1, the impugned E.A came to be filed by the present petitioner/J.Dr.No.1 seeking three reliefs i.e 1) to set aside the decree passed in O.S.No.89 of 2011, on the ground that the same was obtained by playing fraud on the Court below, 2) to ascertain the existence of E.P schedule property and 3) to ascertain any violation of the decree.
In so far as the plea relating to setting aside the decree passed by the Court below in O.S.No.89 of 2011, the plea of the J.Dr No.1 is that the Decree Holder has obtained the decree by playing fraud on the Court. But, a perusal of the impugned application filed by the petitioner/J.Dr.No.1, does not anywhere disclose as to manner how the Decree Holder has not obtained the decree by playing fraud. The facts of the present case leave no manner of doubt that the decree holder has obtained the decree by playing fraud on the court. A fraud is an act of deliberate deception with the design to secure something by taking unfair advantage of another. It is a deception in order to gain by another's loss. A litigant, who approaches the court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he cannot be held guilty of playing fraud on the court as well as on the opposite party. Therefore, in the instant case, the petitioner/J.Dr.No.1, failed to prove that the Decree holder obtained the decree by playing fraud.
Further, as per the Order VI Rule 8 C.P.C, in all cases in which the party pleading relies on any misrepresentation, fraud, breach of 4 trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings.
Having regard to the above, except bare allegations, there are no other averments to substantiate the same. It appears that the finding of the Court below in rejecting the plea of the petitioner/J.Dr, warrants no interference. It is further to be noted that any application seeking to set aside a decree obtained by playing fraud as per Section 59 of the Limitation Act, 1963, is three years from the date when the party obtained the decree. No where in Section 113 of the Limitation Act, the limitation period is provided.
A perusal of the record discloses that the decree was passed in O.S.No.89 of 2011 on 17.8.2011 and as per the above provisions, the petition or suit to cancel the decree dated 17.8.2011, passed in O.S.No.89 of 2011, ought to have been filed on or before 18.8.2014. As the present petition seeking the relief of cancellation of decree in O.S.No.89 of 2011 dated 17.8.2011, was filed by the petitioner in the year 2017, which is beyond the period of limitation. It is pleaded that the petitioner could not file the application in time to set aside the decree as he was hospitalized. But no documents are placed on record to prove that the petitioner was hospitalized for T.B treatment at Hyderabad. Therefore, the contention of the petitioner that the petition to set aside the decree could not be filed in time due to hospitalization, cannot be accepted.
With regard to ascertaining the existence of E.P schedule property, it is stated in the schedule that the land admeasuring Ac.0.66 cents, situated at D.No.190/4C of Thammavaram Village, belongs to the petitioner/J.Dr and as per the sale deed dated 5 18.11.2010, the survey number in the said document is mentioned as 190/4C, whereas E.P Schedule survey number is shown as 90/4, which is totally different. Coming to the 3rd relief viz., violation of the decree passed by the Court below, as the main E.P filed by the D.Hr is about violation of decree by J.Drs, it will be ascertained in main E.P, after appreciating the evidence produced by the parties. It cannot be ascertained in this Execution application which amounts to pre-determination and hence, the Court below disallowed the claim of the petitioner.
For the aforesaid reasons, I see no grounds to interfere with the order passed by the Court below and the civil revision petition is liable to be dismissed.
Accordingly, the civil revision petition is dismissed. No order as to costs. Consequently, the miscellaneous Applications, if any shall stand closed.
_________________________ C. PRAVEEN KUMAR,J Date:16.11.2018.
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