Andhra HC (Pre-Telangana)
Khaja Safiullah vs Mettu Baga Reddy And Ors. on 15 September, 2006
Equivalent citations: 2007(1)ALD565, 2007(1)ALT33
ORDER V.V.S. Rao, J.
1. The fourth defendant in O.S. No. 195 of 2005 on the file of the Court of the II Additional District Judge, Ranga Reddy, filed the present Civil Revision Petition under Article 227 of Constitution of India. He is aggrieved by the order, dated 03.06.2006, in I.A. No. 1329 of 2005 in the said suit passed by the lower Court. By impugned order, the learned trial Judge suspended the Judgment and Decree in O.S. No. 1331 of 2004 on the file of the Court of the Principal Junior Civil Judge (East and North), Ranga Reddy District (hereafter called, the offending Judgment).
2. The respondents 1 to 33 herein (hereafter called, the plaintiffs) filed the suit for a decree declaring the offending Judgment as null and void and for perpetual injunction restraining defendants 4 and 5 from interfering with their possession. The offending Judgment was challenged inter alia on the ground that the same was obtained by the fourth defendant in collusion with the fifth defendant in respect of the suit schedule property. They alleged that their ancestors were protected tenants of the suit schedule property, in respect of which, Certificates under Sections 35, 37 and 38E of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (the Act, for brevity) were obtained. The fourth defendant, however, filed O.S. No. 1331 of 2004 against fifth defendant without disclosing all this based on an agreement allegedly executed by the fifth defendant and obtained ex parte decree for declaration of title. The plaintiffs came to know about this from a paper publication in Eenadu, dated 25.05.2005. They alleged that defendant in O.S. No. 1331 of 2004, Nawab Mir Amjad Ali, had no right, title or possession and that they perfected their title by adverse possession.
Along with the suit, they filed two interlocutory applications. I.A. No. 1329 of 2005 was filed under Section 151 of Code of Civil Procedure, 1908 (CPC) to suspend the offending Judgment and I.A. No. 1330 of 2005 was filed under Order XXXIX Rules 1 and 2 of CPC for grant of temporary injunction. The fourth defendant opposed the applications. He alleged that his father purchased the land admeasuring Acs.52.14 guntas from Nawab Mir Amjad Ali under unregistered sale deed, dated 12.03.1964, that when he did not execute sale deed pursuant to the unregistered document, he filed O.S. No. 1331 of 2004 and obtained a decree for declaration and that the plaintiffs had no prima facie case. In support of the application for suspension of the offending Judgment, the plaintiffs alleged that after obtaining offending Judgment, the fourth defendant tried to approach revenue authorities for mutation in the revenue records by taking advantage of the offending Judgment and if the same is allowed, it would cause hardship to plaintiffs. The fourth defendant also opposed the application raising similar grounds, which are raised in opposition to the application for ad interim injunction.
The trial Court considered both applications separately. By order, dated 03.06.2006, the trial Court granted ad interim injunction in I.A. No. 1330 of 2005. Aggrieved by the same, the fourth defendant filed Civil Miscellaneous Appeal in C.M.A. No. 618 of 2006 before this Court. The same was allowed on 17.08.2006 and the matter was remanded to the lower Court for fresh enquiry. Be that as it is, by separate order in I.A. No. 1329 of 2005, dated 03.06.2006, the trial Court came to the conclusion that if the offending Judgment is not suspended, it would cause hardship to the plaintiffs and would lead to multifarious litigations. Accordingly, the offending Judgment was suspended.
3. Learned Counsel for fourth defendant/petitioner submits that the impugned order of the trial Court suspending the offending Judgment is without jurisdiction. The power to stay the Judgment either under Order XLI Rule 5 or under Section 151 of CPC, can be exercised only when a decree is executable. If the decree is not executable, the same cannot be suspended nor stayed. Secondly, he would urge that the order of the trial Court without proper reasons is unsustainable. He placed reliance on Krishnamurthy v. Suryakantamma , K.M. Sastry v. Director, Postgraduate Centre, Anantapur AIR 1982 AP 176, Ramachandra Reddy v. Janaki 1984 (1) ALT 387 and Shree Chamundi Mopeds Limited v. Church of South India Trust Association, Madras .
4. Per contra, learned Counsel for plaintiffs/respondents 1 to 33 contends that the suit was filed by the fourth defendant against Nawab Mir Amjad Ali on 07.09.2004 and ex parte decree was obtained on 22.11.2004, which itself would show that it was a collusive decree. When the plaintiffs are not made parties and when they are directly adversely affected by such ex parte collusive decree, they had no other go except to file the suit to declare the offending Judgment as null and void. Under A.P.Rights in Land and Pattadar Pass Books Act, 1971 (RoR Act, for brevity), a person acquiring rights to agricultural land under a Court decree can seek mutation in revenue records as well as pattadar pass books, which carry presumption of title under the RoR Act, and therefore, if the offending Judgment is not suspended there is likelihood of the fourth defendant getting pattadar pass books and transferring the property to the third parties to defeat the claim of the plaintiffs in the suit. According to learned Counsel when a person is not a party to the collusive decree such person can always seek suspension of the said decree in a subsequent suit even at interlocutory stage. He placed reliance on the decision of the Allahabad High Court in Surajdeo v. Board of Revenue .
5. The short question is whether it is competent to the civil Court to suspend a declaratory decree in exercising of its inherent powers under Section 151 of CPC. Be it noted Rule 5 of Order XLI of CPC confers power on the appellate Court to stay any decree against which appeal is filed, if it is satisfied that the execution of an appeal to decree would cause substantial loss to the party applying for stay and when application for stay is made without unreasonable delay. 'Decree' is defined as a formal expression of an adjudication conclusively determining the rights of the parties with regard to the matters in controversy in the suit (Section 2(2) of CPC). Therefore, looking at the language of Order XLI Rule 5 of CPC, there cannot be any doubt that the appellate Court can even stay the operation of a decree for declaration because while defining 'Decree' CPC does not make any difference between a declaratory decree or non-declaratory decree. This would furnish a clue to appreciate the question raised by the learned Counsel for the petitioner.
6. It is no gainsaying that a civil Court is empowered to adjudicate common law rights and common law obligations and is vested with inherent power to make any order for the ends of justice or to prevent abuse of process of the Court. Section 151 of the CPC saves the inherent power of every common law Court, which is empowered to try all suits of civil nature unless and until the jurisdiction of the Court is expressly or impliedly ousted (see Section 9 of CPC). Apart from this jurisdiction, Sections 75 and 78 of CPC confer powers on the civil Court to deal with incidental proceedings and Sections 94 and 95 of CPC confer powers to deal with supplemental proceedings. The powers to appoint Commissions, to examine any person, to make local investigation, to examine accounts, to make partition, to hold a scientific/ technical investigation, to conduct sale of property or to perform any ministerial act, are treated as incidental proceedings and Court is conferred the power to deal with them. Section 94 of CPC appears in Part VI titled as "supplemental proceedings", which reads as under.
Supplemental proceedings.
94. In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.
7. In plain terms, under Section 94 of CPC, the Court may issue orders to prevent ends of justice from being defeated. Such orders could be warrant of arrest, direction to defendant to furnish security, to produce any property, granting temporary injunction and committing to civil prison for disobedience thereof, appointing a Receiver of any property and to make such other interlocutory orders as may appear to the Court to be just and convenient. If Section 94 is read with Section 151 of CPC, which saves the inherent power of the Court to make order for ends of justice or to prevent abuse of process of Court, there cannot be any doubt that the civil Court can make any order, which appears to be just and convenient.
8. The power of the Court to exercise its inherent powers or supplemental powers under Section 94 of CPC does not depend on the question whether a decree is executable or inexecutable. Irrespective of executability, every declaratory decree entitles the decree holder to a legal character or to right to property and such right operates against every person denying the right and title. Of course, a declaratory decree binds only the parties to the suit and those parties, who were not bound by such decree because either they were not parties to the declaratory suit or the property in respect of which declaration was sought is altogether different, may collaterally suffer adverse affects as in the case of the operation of RoR Act in Andhra Pradesh. RoR Act was primarily intended to streamline the Record of Rights in respect of agricultural lands, which from immemorial times, were respected notwithstanding the absence of proper title documents or survey records. When once a person is recorded as the owner/occupier of the agricultural lands and pattadar pass book is issued, the same carries a presumption as to the title of the person. Therefore, when a declaratory decree is obtained by the fourth defendant and the fourth defendant approaches revenue/recording authority under RoR Act for issue of pattadar pass book, those persons who are legitimately the true owners of the land would certainly be affected adversely. In such a situation, the question is not whether the decree is executable or not. The question, then, would be whether by virtue of the declaratory decree, there is effect on the right of a person due to the consequential official/unofficial acts arising from or out of the declaratory decree. It would be altogether a different case, if grievance is made out by a person, who is bound by the declaratory decree by reason of such person being a party to the suit before the Court. When a person is not a party to the suit, in which a declaratory decree was passed, the remedy would be to file a suit for declaration that the earlier decree is not binding on such person under Section 35 of Specific Relief Act, 1963, and also seek an interlocutory order suspending the declaratory decree if it is likely to result in adverse consequential acts at the instance of the decree holder.
9. In Raghavaiah v. Lakshminarayana , the petitioner filed a miscellaneous application under Section 151 of CPC for stay of proceedings in E.P. No. 98 of 1954 in O.S. No. 170 of 1950 on the file of the Court of the District Munsif, Tenali pending the appeal. The application was opposed by the respondent inter alia on the ground that such an application under Section 151 is not maintainable for setting aside execution proceedings arising out of a suit, which has become final. The submission was repelled by Court. Referring to Balaji Rao v. Natesa Chetty AIR 1948 MADRAS 138 (A), Kumarappa Goundan v. Ramaswamy Goundan AIR 1948 MADRAS 150 (B) and Ahmed Abdul Sukkoor v. Vallabhadas Kanji Firm (C) , Andhra High Court held that in exercise of powers under Section 151 of CPC, the appellate Court is empowered to stay not only the trial of an independent suit but also proceedings in execution of a decree in an independent suit. It was held that the Court also has power to stay the execution of a decree in appropriate case. The Court further observed as under.
10. In order to attract the terms of Section 151 of CPC, two conditions have to be satisfied; (1) that the applicant for stay has no other remedy available in law, which he can seek from a competent civil court, and (2) that the stay has to be ordered in the ends of justice or to prevent abuse of process of the court. The mere fact that the suit, the trial of which is sought to be stayed, is an independent suit and is not in any way connected with the suit under appeal has been held not to be a sufficient ground for denying the exercise of the power under Section 151 C.P.C.
11. After obtaining the ex parte decree, the petitioner herein filed application before the Mandal Revenue Officer for getting favourable mutation and record of rights. It is not denied that the entire basis for such claim was the ex parte decree in O.S. No. 1331 of 2004. If the declaratory decree is itself the basis for the proceedings before the recording authority under RoR Act, if the same is not suspended, it can certainly lead to other complications. Secondly, the Rules made under ROR Act prohibit the recording authority to postpone the enquiry in the matter of issuing pattadar pass books if an application is filed by anybody that suit for better title is pending. The petitioner appears to have not made the respondents as party defendants in O.S. No. 1331 of 2004 nor did he bring to the notice of the recording authority under RoR Act about the rival claim of the contesting respondents. Therefore, the trial Court was justified and was well within its jurisdiction and powers to suspend the Judgment and decree in O.S. No. 1331 of 2004 on the file of the Court of the Principal Junior Civil Judge (East and North), Ranga Reddy District.
12. It is brought to the notice of this Court that C.M.A. No. 618 of 2006 filed by the petitioner against I.A. No. 1330 of 2005 granting ad interim injunction in favour of respondents 1 to 33 has been allowed and the matter has been remanded to the lower Court. The same has no bearing on the issue raised in this Civil Revision Petition. The suspension of the Judgment and decree, which is sought to be declared as void and illegal is altogether different from the ad interim injunction claimed by the respondents restraining the petitioner from interfering with their alleged possession. The consideration under Order XXXIX Rules 1 and 2 of CPC while granting ad interim injunction is different from the consideration under Section 151 of CPC to suspend the Judgment and decree in O.S. No. 1331 of 2004, which is an independent suit. The other decisions relied on by the learned Counsel have no bearing on the issue considered in this Revision Petition.
13. A reference may, however, be made to Suraj Deo v. Board of Revenue (supra), wherein Allahabad High Court held that the revisional Court should not exercise its powers to set aside even illegal and wrong order if it results in restoring another illegal and wrong order. It is the allegation of the respondents 1 to 33 that Judgment in O.S. No. 1331 of 2004 on the file of the Court of the Principal Junior Civil Judge was obtained by collusion and fraud and therefore, this Court on prima facie consideration is not inclined to exercise its power to invoke the jurisdiction under Article 227 of Constitution of India to interfere with the impugned order of the trial Court, which manifests sound and judicial exercise of discretion.
14. The Civil Revision Petition is devoid of any merit and is accordingly dismissed. No costs.