Andhra HC (Pre-Telangana)
Addepalli Bhaskar Rao vs Karmanchi Anil Kumar And Another on 19 September, 2017
Equivalent citations: AIRONLINE 2017 HYD 32
Author: A.Rajasheker Reddy
Bench: A.Rajasheker Reddy
THE HONBLE SRI JUSTICE A.RAJASHEKER REDDY C.R.P. No.4865 of 2007 19-09-2017 Addepalli Bhaskar Rao ... Petitioner Karmanchi Anil Kumar and another. ..Respondents Counsel for the Petitioner: Sri N.Bhaskar Rao Counsel for the Respondent: Sri V.Satyanarayana Prasad. >HEAD NOTE: ? Cases referred AIR 1967 Kerala 145 2 (2000) 3 Supreme Court Cases 87 3 (2006) 4 Supreme Court Cases 412 4 2002 (6) ALD 834 5AIR 1964 SC 1300: (1964) 6 SCR 1001 6(2003) 11 Supreme Court Cases 584 HONBLE SRI JUSTICE A.RAJASHEKER REDDY CIVIL REVISION PETITION No. 4865 OF 2007 ORDER :
This Civil Revision Petition is filed against order dated 23.08.2007 in EA No.47 of 2005 in E.P.No.133 of 2003 in O.S.No.35 of 2002, wherein the Court below has allowed the application filed by the 1st respondent herein under Section 47 and Section 151 of CPC by setting aside the sale held on 29.11.2004.
2. Brief facts which are necessary for disposal of this Civil Revision Petition are that the 1st respondent filed E.A.No.47 of 2005 claiming to be the tenant of the EP schedule property along with some other property and doing business in the said scheduled shop. Originally, the EP Schedule property belongs to one Kurravari family. The father of the JDR-2nd respondent herein i.e.,Uppala Kasiviswanadham, Chanduluri Satyanarayana and Nagasuri Somaiah jointly purchased the EP Schedule property under two sale deeds dated 09.02.978 and 25.11.1978, as such, the JDR has got only 1/3rd share in the EP schedule property and that the sale of entire EP schedule property is not valid under law.
3. The Decree Holder-petitioner herein filed counter denying the allegations in the petition and contended that the sale held is in accordance with the law and procedure and that the 1st respondent herein is not the tenant or owner of the property. That the 1st respondent also participated in the open auction held by the Court below on 29.11.2004 and the Court Amin has read over the contents of sale notification, but the 1st respondent has not raised any objection, as such, he is estopped from raising such pleas. That the provision of law quoted by the 1st respondent is not correct and that the sale of EP schedule property in the open auction by the Court is after following due process of law.
4. P.Ws.1 and 2 were examined on behalf of the 1st respondent and Exs.A1 to A6 were got marked. On behalf of the petitioner herein, R.Ws.1 and 2 were examined and Exs.B1 to B6 were got marked.
5. The Court below passed impugned order in the Revision Petition holding that the 2nd respondent-JDR has got saleable interest in respect of 1/3rd share of the EP schedule property only but not for the entire EP schedule property and sale of entire schedule property in respect of entire EP schedule property was set aside.
6. Learned counsel for the revision petitioner submits that the Court below erroneously allowed the application filed by the 1st respondent under Section 47 read with Section 151 of CPC, as Section 47 of CPC has no application since the 1st respondent is not a party to the suit. He submits that when once the 1st respondent participated in the open auction conducted by the Court, and the Court Amin has read over the contents of the sale notification, he is estopped from raising all such pleas regarding saleable interest of JDR-2nd respondent. He submits that the application filed by the 1st respondent before the Court below is not maintainable. He submits that the saleable interest of the JDR can only be questioned by the auction purchaser under Order 21 Rule 98 but nobody else. He submits that the Court below erroneously allowed the application holding that the JDR has no saleable interest in respect of entire EP Schedule property. He submits that the application under Order 21 Rule 99 can be maintained only on certain grounds and that the 1st respondent has not made out any such grounds. In support of his contentions, he relied on the judgments reported in P.Narayana Pillai v. Kunju Kunju Gopalan and Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by Lrs .
7. On the other hand, learned counsel for the 1st respondent submits that the application filed by the 1st respondent under Section 47 r/w Section 151 CPC can be treated as one under Order 21 Rule 97 of CPC, since the case of the 1st respondent falls under the said provision. He submits that the Court below after considering the oral and documentary evidence adduced on either side, passed judgment and decree, as such, this Revision Petition does not lie before this Court and that the petitioner has to prefer appeal under Order 21 Rule 103 of CPC. He submits that the 1st respondent is the owner and tenant in respect of 1/3rd share of the EP schedule property, as such, the Court below rightly set aside the sale of entire EP schedule property.
In support of his contentions, he relied on the judgments reported in S.Rajeswari v. S.N.Kulasekaran and D.Kyathappa and others v. K.L.Siddaramappa .
8. Before considering the rival contentions of both parties, it is relevant to extract Section 47 of CPC.
Section 47. Questions to be determined by the Court executing decree: (1): All questions arising between the parties to the suit in which the decree was passed, or their, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
2)xxxx
3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
A reading of Section 47 of CPC goes to show that all the questions arising between the parties to the suit in which the decree was passed, shall be determined by the Court executing the decree and not by a separate suit. Obviously the said provision has no application to the facts of the present case on hand, since the 1st respondent is not a party to the suit i.e., OS No.35 of 2002. According to the learned counsel for the 1st respondent/claimant, when once the 1st respondent has remedy under Order 21 Rule 97 of CPC, the question of invoking Section 151 of CPC does not arise. Even an application under Order 21 Rule 91 of CPC also cannot be invoked by the 1st respondent, since the 1st respondent has filed application on the ground that the judgment debtor has no saleable interest in respect of the entire EP schedule property as only purchaser of the EP schedule property is entitled to make such an application under Order 21 Rule 91 CPC, as held by the Honble Apex Court in Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by LRs. (supra), wherein it is held as follows:
14. The contextual facts depict that the Revision Petition was dismissed on 11th April, 1980 that is long after the completion of sale which has been totally ignored and the Learned Single Judge as a matter of fact has proceeded on a total misconception of facts. Be it noted that at no point of time, any question was raised as regards the total purchase price and as such the attempt on the part of the respondent herein before this Court to denounce the sale on the ground of inadequacy of price ought not to be permitted to be raised before this Court at this juncture. The Learned Single Judge erroneously proceeded on certain misconception of facts as also of law by reason of the factum of challenge of sale being on the ground of saleability. Order 21 Rule 90 does not envisage the issue of saleability and the Learned Single Judge was in error in introducing such a concept under Order 21 Rule 90 of the Code. In any event as noticed above the issue of saleable interest can only be agitated by the purchaser in terms of Order 21 Rule 91 and not in any event by the Judgment-debtor. The ground of challenge is specific in the provision itself, namely, material irregularity or fraud and in the absence of any evidence or even an allegation in regard thereto in the petition under Order 21 Rule 90, question of introduction of the concept of no saleable interest or another opportunity to the judgment-debtor does not and cannot arise.
In this case, admittedly, the Court below has set aside the sale at the instance of the 1st respondent, who is a third party to the suit. Moreover, he also unsuccessfully participated in the auction conducted by the Court below for purchase of entire EP Schedule property, as he was not the highest bidder in the said auction. In the cross- examination of 1st respondent as P.W.1 before the Court below in the claim petition, he admitted that the sale notification was read over to him by the Amin, but he never objected to the same either on the ground that he is tenant or on the ground that he is having 1/3rd share in the EP schedule property, as such, he is estopped from raising such pleas in the present application once again. Obviously, the 1st respondent has no locus standi to question the same on the ground that the 2nd respondent-Judgment Debtor has no saleable interest in respect of the entire EP schedule property, but the petitioner herein, being the auction purchaser, only has got right to question the same and entitled to do so under Order 21 Rule 91 of CPC. As such, the impugned order of the Court below is liable to be set aside.
9. The other contention raised by the learned counsel for the 1st respondent that the application should have been treated under Order 21 Rule 97 of CPC. The said contention is also without any substance because Order 21 Rule 97 has no application as the same deals with filing of application by the Decree Holder or purchaser on the resistance or obstruction by third parties.
Order 21 Rule 97 reads as follows:
97. Resistance or obstruction to possession of immovable property: (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
The provisions of Order 21 rule 97 thus categorically envisage that the holder of a decree for the possession of immovable property or the purchaser of such property sold in execution of a decree is resisted or obstructed, he may make such an application to the Court complaining such resistance or obstruction. But in this case, application is made by the 1st respondent being third party, as such, said contention cannot be accepted in view of the fact that the 1st respondent is neither a decree holder nor auction purchaser in the auction conducted by the Court below.
10. That apart, the 1st respondent cannot also invoke Order 21 Rule 90 of CPC since he himself participated in the auction conducted by the Court below for purchase of entire EP schedule property and also admitted in his cross- examination, as already observed supra that the sale notification was read over to him by the Court Amin, he never objected to the same, as such, the application cannot also be treated under Order 21 Rule 90 of CPC also as held by the Honble Supreme Court in Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by LRs. (supra), as follows:
7. On a plain reading of the provisions thus three several factors emerge and which ought to be taken note of in the matter of setting aside the sale of an immovable property, viz.,
(i) material irregularity and fraud in publishing or conducting the sale;
(ii) the Court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud; and
(iii) no application would be entertained upon a ground which the applicant could have taken on or before the date of drawing up of the proclamation of sale.
8. The third requirement as above needs, however, special mention by reason of the factum of incorporation of the principles analogous to the doctrine of constructive res judicata as envisaged under Section 11 of the Code. The legislative intent is clear and categorical in both the provisions as above that in the event of an intentional relinquishment of a known right, question of proceeding further would not arise.
9. This observation finds favour in the decision of this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh . It is significant to note, however, that at the time of auction Judgment-debtor 2 was present in court and Judgment-debtor 2 was also a signatory to the application under Order 21 rule 90.
It is needless to point out that there is no material on record or evidence to the effect that any fraud or illegality is played by the petitioner while purchasing the EP schedule property in the auction conducted by the Court below. However, the 1st respondent had filed an application by invoking the provision under Section 47 of CPC read with Section 151 of CPC.
Section 151 of CPC reads as follows:
151. Saving of inherent powers of Court:-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.
Section 151 of CPC provides for inherent powers on the court to make such orders as may be necessary to meet the ends of justice or to prevent abuse of the process of the Court, but not as a matter of course. Obviously, the 1st respondent is neither party to the suit nor to the EP and Section 151 CPC can only be invoked to meet the ends of justice or to prevent the abuse of process of Court. But in the present case, it is not the case of the 1st respondent that there is abuse of process of Court and that there is no finding of the Court below to that effect.
11. While dealing with the question whether an application filed by decree holder under Section 151 CPC for removing the obstruction to delivery of possession of land claimed by decree-holder held to be treated as an application under Order 21 Rule 97 and the Court has followed the procedure laid down by Order 21 Rule 98 to 100, the Honble Supreme Court in S.Rajeswari v. S.N.Kulasekaran and others (supra) held that only appeal lies against the order passed under Order 21 Rule 97 treating the order passed in the application under Section 151 CPC as one under Order 21 rule 97 since factual aspects raised in the application under Section 151 of CPC attracted the provisions of Order 21 Rule
97. The Court below in that case also followed the procedure under Order 21 Rule 97 and held that the said order is appealable under Order 21 Rule 103 of CPC. But the facts in the present case on hand are otherwise. Having participated in the auction and having kept quite at that time, the 1st respondent/third party cannot question the auction sale of EP schedule property by way of an application under Section 47 r/w Section 151 CPC. Moreover, when Section 47 of CPC has no application and it is deemed that the Court passed orders under Section 151 CPC, which is not appealable, the Court below by of allowing the application, has terminated the entire EP, which is erroneous. The order setting aside the sale of EP schedule property will have the effect of disposal of EP itself and nothing survives for adjudication in the EP, as such, contention of the learned counsel for the 1st respondent that the impugned order is interlocutory in nature, and that revision is not maintainable also cannot be accepted and the judgments cited by the learned counsel for the 1st respondent in S.Rajeswari v. S.N.Kulasekaran and others (supra) & D.Kyathappa and others v. K.L.Siddaramappa have no application to the facts of the present case on hand. Moreover, judgments of Courts are not to be construed as statues as held by the Honble Supreme Court in the judgment reported in Ashwani Kumar Singh v. U.P.Public Service Commission and others , wherein the Honble Supreme Court held as follows:
10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951) AC 737 at p. 761, Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J, as though they were part of an Act of parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge."
11. In Home Officer V. Dorset Yacht Co., [1970] 2 All ER 294 Lord Reid said, "Lord Atkin's speech.........is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J in Shepherd Homes Ltd. v. Sandham, (No. 2) (1971) 1 WER 1062 observed: "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." In Herrington v. British Railways Board, (1972) 2 Wl R 537 Lord Morris said :
"There is always peril in treating the words of a speech or judgment as though they are words in legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
13. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul kayoom v. CIT (AIR 1962 SC 680), AIR p.688, para 19 "19.Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
"Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
For the foregoing reasons, the impugned order of the Court below is set aside.
Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand disposed of. ________________________ A.RAJASHEKER REDDY,J 19-09-2017