Andhra HC (Pre-Telangana)
Chebolu Nooka Raju vs Kesam Rama Swamy And Anr. on 12 July, 2001
Equivalent citations: 2001(5)ALT460
ORDER P.S. Narayana, J.
1. This civil revision petition is directed against an order in unnumbered E.P.No....... of 1998 in O.S.No. 382 of 1997 dt 21-8-1998 on the file of the III Additional Senior Civil Judge, Visakhapatnam.
2. Execution petition was filed under Order 21 Rules 64 and 66 C.P.C. for sale of attached property before judgment. The office has taken an objection that in the decree schedule and the attachment list of the Amin the door number is mentioned as 33-25-12 but in the Municipal tax demand extract, encumbrance certificate and E.P. schedule door number is mentioned as 33-25-13 and hence the E.P. cannot be numbered unless the door number is amended. The Court below also observed that the subject matter of the E.P. is house property in Visakhapatnam Municipal Corporation and it will be identified through the door number only and consequently the E.P. was rejected. Aggrieved by the same the decree holder had filed the present civil revision petition.
3. Sri K. Srinivas Rao, representing Sri Raghuram had contended that mere mentioning of wrong door number is of no consequence since the specific boundaries had been given to identify the property and there is no dispute regarding the identification of the property and hence rejection of E.P. on that ground is unsustainable. The learned Counsel also had placed reliance in Roy and Company v. Nani Bala Dey, and Subba Rao v. Azizunnisa Begum, 1985 (2) APLJ 149 (D.B.). The learned Counsel further argued that when a property is clearly identified by boundaries, mere mistake of giving wrong door number is of no consequence. The learned Counsel had drawn my attention to paras 33 and 34 of the judgment in Subba Rao's case, 1985 (2) APLJ 149 (D.B.) wherein the Division Bench of this Court was pleased to observe as follows:
"The law is well settled that if a property is described by distinct boundaries, which can be identified, any mistake in the survey number of the land has to be ignored. The maxim 'falsa demonstration non-nocet' has been applied in such a situation.
Even if the property is known by a definite name as happens when a particular land has a local name or where the particular building has a particular name, the identity of the property can be established."
It was also further contended that no prejudice will be caused to the judgment debtor if the execution petition is numbered and it is further proceeded with.
4. Sri Aditya Dath representing Mr. A. Sreenivas Sharma had contended that by giving a wrong door number there will be future complications in the event of property being sold in Court auction.
5. After hearing the rival contentions of both the parties, I am of the view that the order of rejection on this ground cannot be sustained at the stage of numbering of the E.P. Hence for the foregoing reasons the impugned order dated 21-8-1998 in the unnumbered E.P....... of 1998 in O.S.No. 382 of 1997 on the file of the III Additional Senior Civil Judge, Visakhapatnam is hereby set aside and the Court below is directed to number the execution petition and proceed with the matter in accordance with law.
6. Civil revision petition is accordingly allowed. No costs.