Andhra HC (Pre-Telangana)
Satyamsetti Somaraju vs Ramisetti Naidu And Anr. on 5 September, 2003
Equivalent citations: AIR2004AP87, 2004(1)ALD318, 2004(1)ALT156, III(2004)BC117, AIR 2004 ANDHRA PRADESH 87, (2003) 6 ANDHLD 225, (2003) 6 ANDH LT 62, (2004) 1 CIVILCOURTC 590, (2004) 3 BANKCAS 117, (2004) 1 ANDHLD 318, (2004) 2 ICC 87, (2004) 1 ANDH LT 156
JUDGMENT Dubagunta Subrahmanyam, J.
1. This appeal is filed against judgment dated 21.3.1994 in A.S. No. 19 of 1993 on the file of Subordinate Judge, Peddapuram, confirming the order and decree dated 6.8.1993 in E.A. No. 104 of 1990 in E.P, No. 147 of 1989 in O.S. No. 52 of 1985 on the file of District Munsif, Prathipadu. The claimant is the appellant.
2. Necessary facts for the disposal of this appeal are as follows:
First respondent - decree holder obtained a money decree against second respondent -judgment debtor. During the pendency of suit, the decree holder attached before judgment some property said to be belonging to defendant-judgment debtor. The attachment was effected on 5.5.1985. Thereupon during the pendency of the suit itself the appellant filed T.A.No.322 of 1985 under Order 38 Rule 8 C.P.C., seeking raising of attachment on the ground that the appellant is the owner of the said property, he purchased the said property under a regular registered sale deed dated 21.2.1985 and the second respondent -judgment debtor had no interest or right over the said property. The said attachment raising petition in I.A. No. 322 of 1985 stood dismissed for default of appellant - claimant on 22.4.1986. Subsequently when the attached property was brought to sale, nearly four years after the date of attachment, the appellant filed an application in E.A.No. 104 of 1990 under Order 21 Rule 58 C.P.C., requesting the Trial Court to raise the attachment in question. The claim application was contested by the first respondent - decree holder on various grounds. Both parties adduced evidence before Executing Court. It dismissed the claim application by its order dated 6.8.1993. The appellant preferred an appeal before Subordinate Judge, Peddapuram. The lower Appellate Court, on a consideration of various contentions raised before it, dismissed the appeal confirming the order passed by the Trial Court dismissing the claim application. Aggrieved thereby, the appellant preferred the present appeal.
3. At the time of admission of this appeal, the learned admission Judge treated the following point formulated in the memorandum of grounds of appeal as substantial question of law that arises for consideration in the present appeal.
"The applicant having purchased the schedule property under a registered sale deed prior to attachment before judgment and has been in possession, no collusion can be attributed".
4. Point: The two Courts below gave more than one reason for dismissing the claim application filed by appellant. The appellant is a close relation of judgment debtor - second respondent. The fact remains that the property attached originally belonged to judgment debtor. Claimant pleads that he purchased it from judgment debtor for a valuable, consideration. The two Courts below observed that the appellant did not produce the original sale deed and the sale transaction is a collusive and nominal transaction. The two Courts below further held that in view of the principle of res judicata, the claim application before the Executing Court is not maintainable as the earlier petition filed in LA. No. 322 of 1985 was dismissed for default of the claimant. The learned Counsel for the appellant contended that as the earlier application in LA. No. 322 of 1985 was not disposed of on merits by the Trial Court, the fact of dismissal of the said application does not attract the provision contained in Section 11 C.P.C. There may be some force in the said contention. This aspect need not be decided in this appeal. He also contended that the provision in Order 2 Rule 2 C.P.C., does not apply to the facts of the present appeal. On a consideration of the provision in Order 2 Rule 2 C.P.C., I accept the said contention. It is true that the sale deed in favour of the appellant is anterior to the date of attachment in question. It is also true that on the solitary circumstance that the market value mentioned in the registers maintained by the Sub-Registrar is higher than the sale consideration amount allegedly paid by claimant, the transaction cannot be treated as a collusive transaction.
5. However, in my considered opinion, there is an insurmountable impediment for the appellant in getting any relief in the present appeal. I.A.No.322 of 1985 was dismissed for default on 22.4.1986. Appellant admittedly did not file any application under Order 9 Rule 9 C.P.C., requesting the Trial Court to restore to file the said petition dismissed for default and then dispose of the said application on merits. For some reason or other best known to the appellant he allowed the said default dismissal order dated 22.4.1986 to become final .and conclusive. He did not also question the said default dismissal order in any appeal. The question to be considered is when the appellant allowed the said default dismissal order dated 22.4.1986 to become final and conclusive, is he entitled to file a second claim application on the same cause of action, reagitate the very same matter or dispute which arose for consideration in I.A.No.322 of 1985 and seek the same relief? In my considered opinion the provision in Order 9 Rule 9 C.P.C., debars the present appellant from filing second claim application in E.A.No. 104 of 1990 under Order 21 Rule 58 C.P.C. The provision in Order 9 Rule 9 C.P.C., reads as follows:
9. (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
6. A reading of the above provision clearly indicates that the said provision lays down categorically that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The said rule further provides that the plaintiff may apply for an order to set aside the order of dismissal for default. In an application filed under Order 38 Rule 8 C.P.C., to set aside or raising of order of attachment, the inquiry is to be held as provided in execution proceedings. Such an inquiry is to be conducted like a Trial in a regular suit. The law provides for a regular appeal over any order passed in a claim application. Therefore, the order of dismissal passed in IA No. 322 of 1985 is a decree passed in a regular suit. The second claim application in EA No. 104 of 1990 is like a plaint in a regular suit. In view of the provision in Order 9 Rule 9(1) CPC, the claimant is not entitled to file a second claim application, which is a suit in the eye of law. In view of the said provision, the application in EA No. 104 of 1990 is liable to be dismissed in limini. There are no merits in this appeal. The point is accordingly held against appellant and in favour of first respondent-decree holder.
7. In the result, the appeal is dismissed, but in the circumstances without costs.