Andhra Pradesh High Court - Amravati
Goluguri Vara Lakshmi vs Seelam Suryanarayana Murthy on 31 March, 2023
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THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.R.P.No.3257 of 2019
ORDER:
This Revision Petition, under Article 227 of the Constitution of India, is preferred against the order, dated 16.08.2019, in Un- numbered E.A in E.P.No.73 of 2017 in O.S.No.229 of 2016 on the file of the Court of Senior Civil Judge, Bhimavaram, filed under Order 21, Rule 58 of C.P.C by the Goluguri Vara Lakshmi, to declare that the claim petitioner got absolute rights on the petition schedule property and to raise the attachment over the E.P schedule property and directing the respondents to pay costs to the claim petitioner.
2. Heard Mr. N. Prem Raj, learned counsel for the petitioner and Mr. T.V.S.Prabhakar Rao, learned counsel for the respondents.
3. Learned counsel for the petitioner would contend that the 2nd respondent agreed to sell the schedule property to the claim petitioner for Rs. 34,00,000/- and executed an unregistered agreement of sale between them. The 2nd respondent has received the entire sale consideration from the claim petitioner. Accordingly the claim petitioner has obtained a Registered Sale Agreement- cum - General Power of Attorney from the 2nd respondent on 13.03.2017, since then the claim petitioner has been in possession 2 of the petition schedule property. The petitioner came to know that the schedule property is going to be public auctioned before the court. Therefore the decree obtained by the 1st respondent is a collusive one with the 2nd respondent.
4. The trial court after perusal of the decisions submitted by the claim petitioner and also material on record holding that the date of attachment order under Order 38, Rule 5 of C.P.C on 13.10.2016 and on the date of agreement is dated 24.05.2016, but the registered agreement of sale -cum- General Power of Attorney dated 13.03.2017. Therefore the registration of the document is after attachment of the schedule property and in view of the same, the application is rejected without costs. Assailing the same the present C.R.P came to be filed.
5. During hearing learned counsel for the petitioner placed on record the decision of this Court in "Rolla Ramakrishna Rao and Others Vs. Challagalla Brahmavathi"1 wherein it was held as follows:
"2.......It is true that under Order 21, Rule 90 sub-rule (3) C.P.C an application to set aside a sale need not be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. But, that is not the position here. Therefore, it could not be rejected under sub-rule (3)."1
AIR 1981 AP 29 3 Further he relied on a decision in "Abdur Rahmani Bai Vs. Fatima Bee and Others"2 and also "D.S.Seshadri Vs. Jayalakshmi" 3wherein it was held as follows:
"8.......we agree with the learned Judge that the orders contemplated by Section 28 are orders passed under the Act, but it cannot be said that there would be no right of appeal against any interlocutory order at all. There may be interlocutory orders like an injunction etc. or orders relating to execution, satisfaction and discharge in execution of decrees under the Act. Those orders will be orders passed under the provisions of the Civil Procedure Code and it appears prima facie that they will be subject to right of appeal granted under that very Code which is made applicable to the proceedings under the Act. It is, however, unnecessary to pursue that matter further as the question with which we are now concerned relates only to an order under Section 25 of the Act, which is similar to a decree awarding maintenance. We are of the opinion that such an order is appealable."
6. To rebut the same, learned counsel for the respondent placed on record the decision of Hon'ble Full Bench of erstwhile High Court of Andhra Pradesh in "Gurram Seetharam Reddy Vs. Gunti Yashoda and Another"4 wherein it was held as follows:
"39. An examination of the provisions reveals that while Article 11 (i) specifically and directly refers to the applications filed under Order 21 Rule 58. Section 38 is a general provision in relation to suits to set aside the attachment. It is true that an applications filed under Rule 58 are to be decided in the same manner as a suit. However, they cannot be said to be suits referred to in Section 38. The occasion to file a suit to set aside the attachment under Section 38 would arise, if only the 2 AIR 1960 AP 492 3 Indiankanoon.org/doc/375007/ = AIR 1963 MAD 283 4 2005 AIR AP 95 4 application filed under sub-rule (1) of Rule 58 is not entertained and returned. It is on such suits, that the Court fee is payable under Section 38. On the other hand, if the application is entertained, Clause 11(i) of Schedule II get straightaway attracted. Even otherwise, it is settled principle of law that where situations are governed by a specific and a general provision, the latter has to give way......"
"40......The concern of the Law Commission, in this regard, is evident from para 42 of its Twenty Seventh report.
"Para 42: We further recommend, that when an appeal is filed against any order made under Order 21, Rule 58 or Order 21, Rule 97, the Court-fee payable should be the same as is at present payable in the case of an appeal from an order under Section 47. The State Governments have, by notifications issued under the Court-fees Act, reduced the Court fee payable in respect of appeals against orders under Section 47. We recommend that the State Governments should issue a similar notification in respect of appeals against orders under Order 21, Rule 58 et seq or Order 21, Rule 97 et seq, as proposed to be revised".
7. Therefore, this Court after close scrutiny of the decisions placed on record by the respective counsel cited supra and also observation of the trial court in its order, it is made clear that the trial court has made effective observation and discussed detailed case law on the issues raised in the claim petition and the trial court relied on a decision in "Rushie Mahakur Vs. Dibya Shankar"5 wherein it is categorically stated that an alienation of immovable property after attachment is void. An application by the purchaser under Section 58 of Order 21 of the Code is not maintainable. Therefore, this Court finds no merit in the argument 5 AIR 1988 Ori, 145 5 of the learned counsel for the petitioner and view of the settled law, the C.R.P is liable to be dismissed.
8. Accordingly, the C.R.P is dismissed. However, the petitioner is at liberty to avail the remedy of appeal under Section 96 CPC against the order of the Executing Court, duly availing the benefit of Section 14 of the Limitation Act. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 31.03.2023.
KK 6 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO C.R.P.No.3257 of 2019 Date:31.03.2023.
KK 7