Andhra HC (Pre-Telangana)
Akula Ramulu And Ors. vs Kammari Balaram And Anr. on 10 March, 2003
Equivalent citations: 2003(3)ALD52, 2003(3)ALT443, AIR 2003 (NOC) 517 (AP), 2003 A I H C 2538, (2003) 3 ANDHLD 52, (2003) 7 ALLINDCAS 330 (AP), (2003) 3 CURCC 206, (2003) 3 ANDH LT 443
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. This Second Appeal is preferred against the judgment in A.S. No. 27 of 1997 on the file of the III Additional District and Sessions Judge (Fast Track Court) at Nizamabad. AS. No. 27 of 1997, in turn, was preferred by the appellants herein against the order in EA. No. 58 of 1997 in E.P. No. 9 of 1993 in O.S. No. 8 of 1975, on the file of the Court of the Subordinate Judge, Nizamabad. The appellants are Objection Petitioners in the execution proceedings. The trial Court as well as the lower appellate Court rejected the objections raised by the appellants.
The relevant facts may briefly be stated as under:
2. The 1st respondent, by name Kammari Balaram, filed O.S. No. 8 of 1975 in the Court of the Subordinate Judge, Nizamabad, against the 2nd respondent-Akula Bhumalingam, for the relief of declaration of title and recovery of possession. The 2nd respondent claimed his possession on the basis of agreement of sale in his favour from the 1st respondent. The trial Court found that the 1st respondent was the owner of the suit schedule property, being an assignee from the Government, the same was not alienable and accordingly decreed the suit as prayed for. The trial Court also directed the 1st respondent to refund the advance/ sale consideration of Rs. 5,500/- received by him.
3. The 1st respondent preferred A.S. No. 778 of 1978 in this Court feeling aggrieved by the decree of the trial Court, in so far as it directed refund of the sale consideration. A learned single Judge, through judgment dated 7-3-1983, held that the 1st respondent was not under obligation to refund the said amount. Aggrieved thereby, the 2nd respondent filed LPA No. 104 of 1983. A Division Bench of this Court, through judgment dated 13-8-1987, directed refund of the amount and thereby upheld the decree of the trial Court. Having complied with the directions as regards repayment of the advance/ sale consideration, the 1st respondent filed E.P. No. 4 of 1993 for delivery of possession.
4. The appellants 1 to 3 in this appeal are the sons and appellant No. 4 is the wife of the 2nd respondent. They filed EA. No. 58 of 1997 under Order XXI Rules 97 and 98 read with Rule 101 of CPC raising certain objections as to the executability of the decree. According to them, the assignment in favour of the 1st respondent was cancelled by the concerned revenue authorities and thereafter the suit schedule property was assigned in bits in favour of the appellants. The executing Court rejected the contentions through its order dated 9-7-1997. The appellants carried the matter in appeal before the lower appellate Court. The appeal was dismissed through judgment dated 23-9-2002. Hence, the present Second Appeal.
5. By the time the 2nd appeal came to be filed, the 1st respondent filed Caveat. When the matter came up for admission, the learned Counsel for both the parties have argued the matter at length and extensively, touching upon the questions of fact and law.
6. Sri C.R. Pratap Reddy, learned Counsel for the appellants, submits that the decree in favour of the 1st respondent was binding only on the parties thereto; and being one in personam, does not bind the appellants herein. He submits that the basis of claim and title of the 1st respondent over the suit schedule property was the assignment in his favour and once that was cancelled and the appellants were assigned the same land, the basis for the decree disappears and there do not exist anything to be executed. He submits that the powers of the executing Court are wide enough to adjudicate upon the various aspects including the one for adjudication of the rights of 3rd parties.
7. Sri S. Ashok Anand Kumar, learned Counsel for the 1st respondent, submits that the 2nd respondent, who had lost before all the Courts, had invented the theory of cancellation of the assignment in favour of the 1st respondent and subsequent assignment in favour of his wife and sons, i.e., the appellants herein, only with a view to defeat the decree, which has become final. He submits that nothing was placed before the executing Court to substantiate the factum of cancellation of the assignment and, at any rate, as long as the decree stands, the subsequent alienations, even if true, do not have any bearing on the decree.
8. It is not in dispute that the decree in favour of the 1st respondent in O.S. No. 8 of 1975 has become final. In fact the 2nd respondent did not challenge the same at any Forum. The 1st respondent carried the same in appeal in AS. No. 778 of 1978 only in so far as it relates to refund of the advance/sale consideration. As regards other aspects, no one had canvassed the correctness of the same.
9. The appellants herein have put forward certain objections to the execution of the decree. Their contention was that the assignment in favour of the 1st respondent was cancelled by the concerned revenue authorities on 22-7-1979 and thereafter it was assigned in their favour in various bits. They also pleaded that they have invested an amount of Rs. 1.50 lakhs for development of the same. The trial Court passed the decree on 22-4-1978 declaring the title of the 1st respondent over the suit schedule property. As observed earlier, no one had challenged that declaration. Nothing is placed before the executing Court by the appellants herein to show that the necessary proceedings have been initiated as contemplated under law against the 1st respondent for cancellation of the assignment in his favour. It was a matter of record that the 2nd respondent was found to be in possession of the suit schedule property. He suffered a decree and was directed to restore the possession to the 1st respondent. Not a word is stated as to when and in what manner the 1st respondent lost the possession of the land as a consequence of the so-called cancellation of the assignment in favour of the 1st respondent on 22-10-1979. Even if anyone including the officials of the Government Department had sought to dispossess him, the same could not have any effect as long as the 2nd respondent was required by the decree to deliver the possession to the 1st respondent.
10. There is another aspect, which needs to be adverted to. In AS. No. 778 of 1978, preferred by the 1st respondent as regards refund of the sale consideration, the learned single Judge of this Court, through its Judgment dated 7-3-1983, accepted his contention. The 2nd respondent carried the mater in LPA. The same was disposed of in 1987. It is not known as to whether the 2nd respondent brought the factum of cancellation of assignment in favour of the 1st respondent in 1979, to the notice of this Court, either in the First Appeal or in LPA. If he had canvassed that question before this Court, it has to be deemed to have been taken into account, but ignored. If he failed to do so, he cannot be permitted to canvass the same at a later stage. Further, the cancellation of the assignment, even if true, is not binding on the 1st respondent, once he is armed with a decree of the Court of competent civil Jurisdiction. The revenue authorities cannot be permitted to nullify the decree, that too, without even following the basic procedure.
11. There are other reasons why the objections raised by the appellants herein cannot be taken into account. The scope of adjudication of claims in execution proceedings is delineated by Section 47 of CPC. Under it, the executing Court can decide only those claims raised by the parties or claiming through them. The 3rd parties have no say in the matter. The objections raised by persons who are not parties to the decree or those who do not claim through the parties to the suit, cannot seek adjudication of their rights under Section 47. Though the appellants are sons and wife of the 2nd respondent who is defendant in the suit, they do not claim their right through him. They based their claim on the so-called assignment in their favour. The same is the purport of Rule 101 of Order XXI of CPC also.
12. The application filed by the appellants was the one under Rules 97, 98 read with Rule 101 of Order XXI of CPC. Rule 97 enables only the decree holder for the possession of an immovable property or the purchaser of any such property sold in execution of decree to remove obstructions for any persons. The same does not enable the 3rd parties to make application to raise an objection. The nature of obstructions would no doubt be taken into account by the trial Court in the execution proceedings. The executing Court is required to pass an order under Rule 98 either allowing or dismissing the application for removal of obstructions. Sub-rule 2 of Rule 98 and Rule 102 stipulate as to how the claims of 3rd parties on the basis of pendente life or subsequent alienations are to be dealt with. Rules 98 and 102 of Order XXI read as under:
"Rule 98 : Orders after adjudication :--(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil person for a term which may extend to thirty days.
Rule 102: Rules not applicable to transferee pendente life :--Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation :--In this rule, "transfer" includes a transfer by operation of law."
From a reading of these provisions, it is evident that any transfers that take place during the pendency of the suit or subsequent thereto are to be ignored outright by the executing Court. The explanation to Rule 102 goes to the extent of requiring the executing Court to ignore even those transfers, which take place by operation of law. The so-called assignment in favour of the appellants herein, even if taken to be true and legal, cannot be placed on a higher pedestal than a transfer by operation of law. Having regard to the provisions of sub-rule (2) of Rule 98 and Rule 102 of Order XXI of CPC, the claim of the appellants did not merit any consideration.
13. Sri C.R. Pratap Reddy, learned Counsel for the appellants, has placed reliance upon the judgment of the Supreme Court in Bhanwar Lal v. Satyanarain, . In that case, the decree holder made an application under Rule 35(3) of Order XXI CPC as regards execution of the decree. The same was returned with a direction to file an application under Rule 97(1) of Order XXI. When such application was filed, the same was dismissed on the ground of limitation. The view taken by the executing Court was upheld by the High Court. The Hon'ble Supreme Court reversed the order of the High Court and held that once an application was filed by the decree holder for execution, may be under Rule 35(3) of Order XXI, it should have been treated as having been filed within the limitation and insistence of filing of application under Rule 97(1) and rejection of the same, when filed, on the ground of limitation, was illegal. Neither on facts nor in law, that case had anything in common with the one on hand.
14. The learned Counsel has also placed reliance upon the judgment of the Supreme Court in Sau. Sarastibai Trimbak Gaikwad v. Damodhar D. Motiwale, 2002 Supreme Appeals Reporter (Civil) 362. That case arose out of a situation where the decree holder initiated execution proceedings and a 3rd party, who was granted Occupancy Rights under the Bombay Tenancy and Agricultural Lands Act 1948, resisted the same. Taking into account Section 85 of the Act, which ousted the jurisdiction of the Civil Courts and also the overriding effect given to the provisions of the said Act, the objection on the basis of Occupancy Certificate issued therein, was sustained. It should not be forgotten that the Bombay Tenancy and Agricultural Lands Act, 1948 and similar enactments, such as, the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 were placed in IX Schedule of the Constitution of India and have overriding effect on all other proceedings, so much so, the proceedings in Civil Court were barred. There is not even a semblance of similarity between the facts of that case and the present one. The other decisions relied upon by the learned Counsel for the appellants are equally of no help to the appellants.
15. In addition to the legal aspects referred to above, the facts of the present case reveal as to how the 2nd respondent had defeated the rights of the 1st respondent under a decree, which became final, almost 2 decades ago as regards title and about 1 1/2 decades ago as regards refund of sale consideration. He tried all his tricks to perpetuate his possession, despite the decree having become final. When he sensed that his efforts are no longer going to be fruitful, he managed with some of the revenue officials and attempted to bring about the so-called cancellation as well as the assignment proceedings. The hollowness of the claim of the appellants is evident on the face of record. The 1st respondent was assigned the land as a landless poor. The same is said to have been cancelled and assignments are said to have been made in favour of the appellants. Even on their own showing, they have invested about Rs. 1.50 lakhs in bringing the land to cultivation. If that is their financial status, the genuiness of their claims for assignment can easily be imagined.
16. This case presents an example as to how the judicial system is brought to disrepute by unscrupulous elements, like the 2nd respondent and his family members, the appellants herein. It is always open to any one to work out his legal remedy. However, if the whole effort is to circumvent the system and to reduce the proceedings before a Court to a farce, that too, by taking recourse to dubious methods, the system as such is prone to be branded as ineffective. The 2nd appeal does not merit any consideration either on facts or in law and is liable to be dismissed.
17. The decree for recovery of possession was granted in 1975. The EP was filed in 1993. Respondent No. 2 and the appellants have dragged the matter successfully. The matter need not to be delayed any further. The executive Court is directed to forthwith put the 1st respondent in possession of the suit schedule property unhindered by any resistance by giving all necessary assistance.
18. The second appeal is accordingly dismissed. The 1st respondent shall be entitled for costs through out.