Andhra Pradesh High Court - Amravati
Jiddu Basaveswara Rao vs Lakshminarayana Cooperative Building ... on 6 July, 2022
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Rev.I.A.No.1 of 2022 in C.R.P.No.2771 of 2019 and
Rev.I.A.No.2 of 2022 in C.R.P.No.2900 of 2019
ORDER:
C.R.P.No.1790 of 2019 and batch had been dismissed by this Court by an order dated 03.03.2022 upholding the order of impleadment of the purchasers. Even though various issues on merits and facts had been raised, this Court while disposing of the main revision petitions had restricted its consideration to two issues set out in paragraph No.15 of the order under review.
2. The first issue was on the right of purchasers pendente lite to file objections and applications under Order XXI Rules 97 and 101 C.P.C. The second issue was on the question whether the provisions of Order 1 Rule 10 C.P.C., are available at the stage of execution proceedings.
3. This Court after considering the judgments of the Hon'ble Supreme Court and this Court, had held that the provisions of Order XXI Rules 97 and 101 C.P.C., would not be available to the purchasers. On the second question, whether the provisions of Order 1 Rule 10 C.P.C., are available at the stage of execution proceedings, this court had held that, while such provisions are not available at the stage of execution of a decree, it would be open to the Court, under its inherent powers under Section 151 C.P.C., to implead the purchasers.
4. The purchasers have now filed review applications seeking a review of the order of this Court.
2 RRR,J Rev.I.A.No.1/2022 in CRP.No.2771/2019 & Rev.I.A.No.2/2022 in CRP.No.2900/2019
5. Sri V.S.R. Anjaneyulu, learned Senior Counsel appearing for the review petitioners would rely upon a judgment of a three Judge Bench of the Hon'ble Supreme Court in the case of Silverline Forum (P) Ltd. v. Rajiv Trust1 to contend that even a transferee pendent lite can obstruct and resist the execution of a decree and consequently can initiate proceedings under Order XXI Rules 97, 101 and 102 C.P.C. He would contend that on account of this judgment, the view taken by this Court, as mentioned above, is not in accordance with law. He would also submit that the observations of this Court in this regard set out at paragraph No.18 are raising a bar and hurdle for the purchasers to raise issues under Rules 97 and 101 of Order XXI C.P.C.
6. Sri T.V.P. Sai Vihar, learned counsel for the decree holder would submit that over turning the said view taken by this Court would bring the case back to square one and all the issues would be agitated.
7. In Silverline Forum (P) Ltd. The Hon'ble Supreme Court was considering the right of a sub-tenant to resist the execution of a decree. In this case, the sub-tenancy of the sub-tenant had been created even before the suit. In fact, one of the primary grounds in the suit for ejectment of the main tenant was that the tenant had sub-let the building without the consent of the landlord. The Full Bench of the Hon'ble Supreme Court, at paragraph 10 of the judgment, had specifically held that in the event of resistance by the transferee pendente lite, the scope of the petition would shrink to the limited question of whether there was such a transfer, pendente lite, and on a finding in the affirmative, the Executing Court would have to hold that he had no right to resist in view of the clear language contained in Rule 102 of Order XXI C.P.C. In fact, this passage had been extracted by the Hon'ble Supreme Court in the judgment in Usha 1 (1998) 3 SCC 723 3 RRR,J Rev.I.A.No.1/2022 in CRP.No.2771/2019 & Rev.I.A.No.2/2022 in CRP.No.2900/2019 Sinha vs. Deenaram2 cited by this Court at paragraph 17 of the judgment under review.
8. Sri V.S.R. Anjaneyulu, learned Senior Counsel would submit that the Division Bench of the Hon'ble Supreme Court in Usha Sinha vs. Deenaram, had not taken into account the subsequent paragraphs 15, 16 and 17 of the judgment in Silverline Forum (P) Ltd. He would submit that once these passages are taken into account, there would be a right for even a pendente lite transferee to resist the execution of a decree and to raise disputes under Order XXI Rule 97 to 102 C.P.C.
9. A reading of paragraphs 15,16, and 17 of the judgment of the Hon'ble Supreme Court in Silverline Forum (P) Ltd would show that the said passages do not lend assistance to the contentions raised by Sri V.S.R. Anjaneyulu.
10. In paragraph 15 a passage from the judgment of the Hon'ble Supreme Court in Dhanvarlal v. Satyanarain and anr.,3 has been extracted. In this passage, the Hon'ble Supreme Court only held that a person mentioned in Order XXI Rule 97 would include the judgment debtor or any person claiming derivative title from the judgment debtor or a person who sets up his own right, title and interest dehors the judgment debtor. This ratio does not assist the review petitioners as the question of whether such a person is a transferee pendente lite or not, was not considered.
11. The Hon'ble Supreme Court in paragraph 16 of Silverline Forum (P) Ltd had extracted the judgment of the Hon'ble Supreme Court in the case of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal4. In this passage, the Hon'ble Supreme Court had held that the words "any person" in Order XXI Rule 97 would include the judgment debtor or any one claiming through him and even 2 (2008) 7 SCC 144 3 (1995) 1 SCC 6 4 (1999) 3 SCC 694 4 RRR,J Rev.I.A.No.1/2022 in CRP.No.2771/2019 & Rev.I.A.No.2/2022 in CRP.No.2900/2019 persons claiming independently. Both these passages lay down the ratio that even the persons claiming through the judgment debtor would fall within the ambit of "any person" mentioned in Order XXI Rule 97. However, they do not consider the question of whether such a person, if he is a pendente lite transferee, can offer resistance or claim any rights under the said provisions, in the face of Rule 102 of Order XXI CPC.,. This issue has been examined in paragraph 10 of Silverline Forum (P) Ltd wherein it was held that in the event of it being found that the person resisting the decree is a transferee pendente lite, the said person would not have any further right for any inquiry under these provisions.
12. In the light of the above, this Court does not find any inherent contradiction between the ratio laid down by the Hon'ble Supreme Court in Usha Sinha vs. Deenaram and in Silverline Forum (P) Ltd. The law as laid down in these two judgments is to the effect that Rules 97 to 102 of Order XXI CPC., would be available to any person who seeks to resist the execution of a decree. However, such provision would not be available to a transferee pendente lite. This would mean that in the event of a transferee pendente lite seeking to invoke these provisions, there would have to be a preliminary enquiry to determine whether such person is a transferee pendente lite. If it is found that the person resisting the decree is a transferee pendente lite, such a person would not be entitled to invoke these provisions. In the present case, it is the admitted case on all sides that the review petitioners are pendente lite transferees.
13. Further, the erstwhile High Court of A.P., in Veerabathini Janardhan vs. Terla Rajaiah (since Died) per LRs. & Ors.,5; Muppidi Dora Reddy vs. Bollareddy Ramakrishna Reddy and ors.,6 5 2007 (6) ALD 605 + 2008 (1) ALT 47 6 AIR 2003 AP 299 5 RRR,J Rev.I.A.No.1/2022 in CRP.No.2771/2019 & Rev.I.A.No.2/2022 in CRP.No.2900/2019 and Kadali Pullayya vs. Kadali Narasanna and ors.,7 had held that pendente lite transferees cannot invoke these provisions of law.
13. For these reasons, the review applications fail and are accordingly dismissed.
_________________________ R. RAGHUNANDAN RAO, J.
06th July, 2022 Js.
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2001 (5) ALT 8 6 RRR,J Rev.I.A.No.1/2022 in CRP.No.2771/2019 & Rev.I.A.No.2/2022 in CRP.No.2900/2019 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO Rev.I.A.No.1 of 2022 in C.R.P.No.2771 of 2019 and Rev.I.A.No.2 of 2022 in C.R.P.No.2900 of 2019 06th July, 2022 Js.