Andhra Pradesh High Court - Amravati
Rachabathuni Govinda Rao, Died vs G Tirupathi Venkaiah on 17 February, 2020
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
C.R.Ps.No.3321 of 2019 & batch
1
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
C.R.Ps.Nos.3321, 3322, 3323, 3324 and 3325 of 2019
Between:
1. Rachabathuni Govinda Rao (died)
2. Rachabathuni Pavan Karthik
3. Rachabathuni Kanthi Keerthi
All are residents of NARG Apartments, Amaravathi Flats,
Flat No.D2, Chenchupeta, Tenali, Guntur District
... PETITIONERS
AND
Golla Tirupathi Venkaiah,
S/o.Venkata Krishnaiah,
R/o. Pesarlanka Village,
Kolluru Mandal, Guntur District.
... RESPONDENT
DATE OF JUDGMENT PRONOUNCED :17-02-2020
SUBMITTED FOR APPROVAL
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the order? Yes/No
___________________
M. VENKATA RAMANA
MVR,J
C.R.Ps.No.3321 of 2019 & batch
2
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ C.R.Ps.Nos.3321, 3322, 3323, 3324 and 3325 of 2019
% Dated:17.02.2020
Between:
1. # Rachabathuni Govinda Rao (died)
2. Rachabathuni Pavan Karthik
3. Rachabathuni Kanthi Keerthi
All are residents of NARG Apartments, Amaravathi Flats,
Flat No.D2, Chenchupeta, Tenali, Guntur District
... PETITIONERS
AND
Golla Tirupathi Venkaiah,
S/o.Venkata Krishnaiah,
R/o. Pesarlanka Village,
Kolluru Mandal, Guntur District.
... RESPONDENT
! Counsel for petitioners : Mr. P.Veera Reddy, senior counsel
representing Sri N.Srihari
^Counsel for Respondent : Mr.S.Subba Reddy, advocate
representing Ms.M.Radha
<GIST :
>HEAD NOTE:
? Cases referred:
1. 2009(6) ALT 451
2. 2009(6) ALT 113
3. 2015(5) 346 (db)
4. 1994(1) SCC 131
5. (2001) AIR (SC) 2220
6. (2000) 1 ALT 472
7. AIR 1990 (SC) 119
8. AIR 2006 (SC) 1458
9. 2014 (6) SCC 397
10. AIR 2006 (SC) 1871
11. 2003 (3) ALT 240
MVR,J
C.R.Ps.No.3321 of 2019 & batch
3
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.R.Ps.Nos.3321, 3322, 3323, 3324 and 3325 of 2019
COMMON ORDER:
All these Civil Revision Petitions are filed against the orders of the Court of learned I Additional District Judge, Guntur, dated 11.09.2019 in E.As.2, 3, 4 and 8 of 2018 and E.A.No.35 of 2017 in E.P.No.66 of 2016 in O.S.No.261 of 2008 respectively. The Judgment-debtors are the petitioners. The respondent is the decree-holder.
2. The first petitioner (J.Dr.) died on 12.03.2018. Other two petitioners are his legal representatives.
3. All the above E.As were filed to reopen the E.P., to set aside the ex parte order passed against them in E.P., to stay all further proceedings, to recall delivery warrant and to set aside the sale of E.P. schedule property respectively.
4. The respondent (D.Hr.) laid a suit against the petitioners on the foot of a registered mortgage, dated 18.03.2006 and against the security of E.P. schedule property. A preliminary decree was passed on 17.08.2010 thereon, granting redemption period of six months. In I.A.No.434 of 2011 in O.S.No.261 of 2008, a final decree was passed in terms of the preliminary decree on 04.09.2015. E.P.No.66 of 2016 was filed in the executing Court basing on the above decrees on 21.03.2016 for realisation of Rs.21,79,093/-. The mode of execution requested was to sell the E.P. schedule property in public auction in terms of Order 21 Rule 64 and Rule 66 CPC.
5. E.P. schedule property is a house bearing Door No.22-11-106 consisting of a vacant site and a terraced house in Ward No.7, Block MVR,J C.R.Ps.No.3321 of 2019 & batch 4 No.2, T.S.No.43 covering 225 sq. yards out of Ac.0.13 cents in Tenali Municipality, in Guntur District.
6. As seen from the proceedings in the execution petition, the petitioners were set ex parte on 08.12.2016. Thereupon, the test of the value of E.P.schedule property was directed by the executing Court and the Field Assistant of the Court gave a report, showing the value of this property at Rs.85,00,000/- and whereas the respondent gave the value at Rs.50,00,000/-. Proclamation was directed thereupon and publication for proposed sale was made in 'Andhra Prabha' Telugu Daily to hold sale on 17.04.2017. But, the sale could not be carried out on that day. Therefore, fresh proclamation was directed, to hold the sale on 07.06.2017 and a publication for such purpose was carried out in 'Andhra Prabha' Telugu Daily again.
7. Sale was conducted in the Court in public auction, of the E.P. schedule property on 07.06.2017. The respondent participated in the bid with the permission of the executing Court on his petition under Order 21 Rule 72-A CPC and became the highest bidder purchasing the property for Rs.90,00,000/-. He deposited 1/4th of the purchase money on 07.06.2017 and balance 3/4th purchase money on 14.06.2017 along with poundage. He also deposited expenses for purchase of stamps for engrossing sale certificate, on 19.06.2017.
8. After 60 days in terms of Order 21 Rule 92 CPC, sale was confirmed in favour of the respondent on 08.08.2017. Sale certificate was issued to him on 21.09.2017. On 22.09.2017 E.P. was closed.
9. Thereafter, the respondent filed an execution application in E.A.No.24 of 2017 under Order 21 Rule 95 CPC read with Section 151 CPC to direct the Field Assistant (Court Amin) to deliver possession of E.P. MVR,J C.R.Ps.No.3321 of 2019 & batch 5 schedule property and since it was returned, the respondent filed another application in E.A.No.28 of 2017 for re-entrustment of the delivery warrant to the Field Assistant for the same purpose of delivery of the property. He also filed E.A.No.34 of 2017 for granting police aid. The Executing Court allowed E.A.No.28 of 2017 and E.A.No.34 of 2017.
10. At that stage, the petitioners presented all the above applications for the purposes stated therein.
11. The contentions of the petitioners in all these petitions is that there was no service of notices on them in the execution petition and the respondent fraudulently obtained orders for substituted service of notice under Order 5 Rule 20 CPC by a publication in 'Prajashakthi Telugu Daily' and thus, on 08.12.2016 they were set ex parte, on the ground that they did not attend the Court on that day. It is further contention of the petitioners that the second petitioner contested the suit, filing written statement and also I.A.No.434 of 2011 through his advocate and since his mother was murdered on 17.07.2014, in their house at II Lane, Arundelpet, Guntur, on account of life threat from the assailants responsible for the murder of their mother, they shifted their residence to NARG Apartments, Amaravathi Plots, Plot No.D2, Chenchupet, Tenali, Guntur District, which is to the knowledge of the respondent. It is further stated that the second petitioner is working as a lecturer in Bapatla Engineering College, Bapatla, who is residing in Door No.7.2.28B, Bhimavari Street, Bhimavari Palem, Bapatla, along with the first petitioner and whereas the third petitioner is a resident of Chennai.
12. The petitioners further contended that the respondent fraudulently proceeded with the execution against them in their absence MVR,J C.R.Ps.No.3321 of 2019 & batch 6 and participated in the auction, where the property was sold for Rs.90,00,000/- in his favour though the property is worth Rs.4.00 Crores.
13. It is specifically stated by the petitioners that on 09.09.2017 at about 10.43 a.m., the respondent made a phone call to the first petitioner to his mobile phone through his mobile phone bearing number 9494152611 informing that he had purchased the E.P. schedule property in the Court auction, asking him to receive the notice from the Court Amin. Thus, according to the petitioners, they came to know about filing the execution petition and also auction of E.P. schedule property, which fact was conveyed by the first petitioner to other two petitioners. Thereafter, they made status search of this case on 'e' Court facility, came to know about ex parte order passed against them on 08.12.2016 as well as further proceedings. In the above circumstances, stating that their non-appearance in the Court on 08.12.2016 was neither willful nor on account of their negligence and that it was on account of fraud played by the respondent, they requested to reopen the execution petition and to set aside ex parte order passed against them under Order 21 Rule 106(1) CPC.
14. Similarly stating, they requested to recall warrant of delivery and to set aside the same as well as grant of stay of all further proceedings in execution petition.
15. These are the allegations made by the petitioners in the affidavit filed by the first petitioner on 17.11.2017 in E.A.No.2 of 2018 and E.A.No.3 of 2018. In the affidavit filed by him in support of their claim, they made similar request and whereas, in the affidavit filed in support of E.A.No.35 of 2017, by the first petitioner, it was also stated that they MVR,J C.R.Ps.No.3321 of 2019 & batch 7 have capacity to pay the decree amount and to get the mortgage property released.
16. The respondent opposed all these petitions, filing a detailed counter setting out the nature of proceedings went on in the suit as well as execution petition, referred to supra. He further contended that the petitioners 1 and 2 contested the suit as well as final decree proceedings through their advocates and were aware of all such proceedings including in execution petition. He further stated that both of them refused to receive the notices and hence they were set ex parte. He further stated that till issuance of sale certificate in his favour, none approached the executing Court nor questioned the sale, where there was no irregularity nor any fraud played by him in respect thereof. He further stated that in November 2017, the petitioners with a malafide intention started the litigation obstructing delivery of property to him with all false allegations and only to frustrate his attempts and to procrastinate the matter.
17. In E.A.No.35 of 2017, the respondent also stated that the sale amount deposited by him of Rs.90,00,000/- is subject matter of attachment by other decree-holders, in various suits filed against these parties, which were pending on the file of the Court of learned Principal Senior Civil Judge, Tenali, viz., O.S.No.109 of 2011 (Rs.10,86,990/-), O.S.No.153 of 2009 (Rs.6,91,480/-), O.S.No.210 of 2009 (Rs.7,35,093/-), O.S.No.111 of 2011(Rs.5,84,782/-), O.S.No.21 of 2009 (Rs.8,92,228/-), O.S.No.207 of 2009 (Rs.10,23,147/-) in all Rs.50,00,000/-. He further stated that if the sale is set aside accepting offer of the petitioners to deposit the decretal amount, he would suffer huge loss. He further contended that an application for setting aside sale on depositing the sale amount along with 5% of purchase money in MVR,J C.R.Ps.No.3321 of 2019 & batch 8 terms of Order 21 Rule 89 and Rule 92 CPC, requires as the condition precedent, to deposit such amount and that such application be filed within a period of 60 days from the date of sale. Contending that the sale cannot be set aside only on the ground that the price brought is very low and when there is no procedural irregularity in taking out proclamation and conduct of sale, it is stated that the request of the petitioners cannot be entertained. It is also contended that after confirmation of sale and issuance of sale certificate, such attempt of the petitioners to set aside the sale cannot be permitted. It is also denied that there was no proper service of notices on the petitioners of the petition in E.P.
18. Considering the material and the contentions advanced on behalf of these parties, the Executing Court dismissed all these petitions holding that the petitioners were aware of the execution proceedings based on the decrees in favour of the respondent and that they failed to satisfy, by making out sufficient cause for their non-appearance in execution petition, when it was posted for their appearance on 08.12.2016. Thus observing, finding that the sale was conducted properly with no irregularity involved in such process nor the grounds urged for setting aside the sale were proper, all these petitions were dismissed including E.A.No.35 of 2017. It was also observed in E.A.No.35 of 2017 that the application filed under Order 21 Rule 90 CPC was barred under Article 127 of Limitation Act, which was not filed within 60 days from the date of sale.
19. Sri P.Veera Reddy, learned Senior Counsel representing Sri N.Srihari, learned counsel for the petitioners raised several contentions assailing the findings so recorded by the Executing Court. Sri S.Subba Reddy, representing Smt.Marella Radha, on behalf of the respondent MVR,J C.R.Ps.No.3321 of 2019 & batch 9 submitted referring to the material on record, calling for no interference with the orders under revision justifying the orders of the executing Court.
20. Now, the following points arise for determination:
1. Whether there was proper service of notice on the petitioners in the execution proceedings and if setting them ex parte on 08.12.2016, is proper?
2. Whether sale of E.P. schedule property be set aside on the ground of fraud as alleged by the petitioners and consequently to recall warrant of delivery of the E.P. schedule property?
3. To what relief?
21. POINT No.1: The proceedings with reference to the suit filed by the respondent against the petitioners basing on decrees therein and whereupon execution levied by him along with various steps taken in pursuance of such execution proceedings including sale of E.P. schedule property are described above.
22. The main objection of the petitioners is that there was no proper service of notice on them in the execution petition. Thus it is contended that the sale went on in the execution proceedings is with fraught with fraud, which the respondent made use of to knock away the E.P. schedule property for an amount of Rs.90,00,000/- though it was worth Rs.4.00 Crores by that date.
23. In elaboration of this ground, Sri P.Veera Reddy, learned Senior Counsel appearing for the petitioners brought to the notice of this Court the manner in which notices were taken out to the petitioners by the respondent, to such address which was given in the mortgage deed and continued in the suit proceedings.
MVR,J C.R.Ps.No.3321 of 2019 & batch 10
24. Sri S.Subba Reddy, learned counsel for the respondent asserting that proper steps were taken for service of notices on the petitioners pointed out the addresses furnished by the petitioners themselves in the decrees as well as the cause title in the petitions filed by them.
25. In the course of hearing these petitions, Sri S. Subba Reddy, learned counsel for the respondent also produced certified copies of notices taken out on the petitioners under Order 21 Rule 66 CPC in the execution petition.
26. A careful perusal of these notices either issued in the first instance for the appearance of the petitioners in the execution petition on 30.08.2016 or later on 18.10.2016 makes out that they were taken out to the same address describing them as residents of Door No. 22-11-106/1, Bose Road, Kothapet, Tenali, which is nothing but the E.P. schedule property. It is undisputed that when the suit was pending, the petitioners resided at II lane, Arundelpet, Guntur, and that the wife of the first petitioner Smt.Rachabathuni Sitamahalakshmi, who was practising advocate at Guntur was murdered on 17.05.2017 by certain named individuals as alleged by the petitioners. On account of this alleged incident, the petitioners contended that since there was threat to their life, they were forced to move to an apartment at Tenali. It is the address they have furnished, as seen from the cause title in all these E.As, in the executing Court. It is not the address appearing in the notices sought to be served on them under Order 21 Rule 66 CPC.
27. A careful examination of the return endorsement of the process- server of the Court, who was entrusted service of these notices to the petitioners, taken out for the first time is to the effect that the first and the second petitioners were then residing at Bapatla and whereas, the MVR,J C.R.Ps.No.3321 of 2019 & batch 11 third petitioner was then residing at Chennai. With such endorsements reporting non-service, the process-server returned the notices.
28. In respect of other set of notices, whereby the petitioners were to appear before the executing Court on 18.10.2016, the endorsement of the process-server was that these petitioners were not residing in the address stated therein and that they left the place about two years ago.
29. It is the precise contention of the petitioners that they were not living in the given addresses in the notices at the alleged time. It is also contended that the second petitioner has been working as a lecturer in Bapatla Engineering College, Bapatla, with whom the first petitioner was living. Their contention is also that the third petitioner is employed in Chennai, where she is living. This fact was also taken note of by the executing Court as seen from para-9 of the orders under revision.
30. Thereupon, the respondent did not make any effort to take out notices to the petitioners to the addresses where they were then living and requested the executing Court for directing substituted service of notices. It was permitted directing publication in 'Prajasakthi Telugu Daily'. The petitioners contended that this newspaper did not have any circulation in the locality, where they were living then. Such an attempt is attributed by them to the respondent as a fraud played on the Court to obtain orders against them.
31. The executing Court basing on the contentions of the respondent proceeded on the premise that there was contest in the suit as well as in final decree proceedings engaging advocates at the instance of the petitioners and that by the time of passing final decree, i.e. 04.09.2015, the petitioners were aware of the proceedings therein. It was further observed by the Executing Court that no prudent man would keep silent MVR,J C.R.Ps.No.3321 of 2019 & batch 12 without observing about his property knowing well about the final decree proceedings and passing of final decree on 04.09.2015 and that there is no proof that they got shifted to Tenali to the knowledge of the respondent.
32. The burden to get the notices served is on the respondent as decree-holder in the execution petition. Merely because the petitioners were residing, in the course of earlier proceedings at a particular place, it cannot be taken for granted that it shall be the place, where they ordinarily resided last for effecting service.
33. In this context emphasis has to be laid to the averment of the deceased first petitioner in the affidavit filed in support of these petitions, where he specifically stated that on 09.11.2017 at about 10.43 a.m., the respondent contacted him on his mobile phone from his mobile phone specifically referring to its number 9494152611 informing to receive notices on the premise that he had purchased the E.P. schedule house in auction. When such clear averment was made by the first petitioner, it is the burden of the respondent to offer a specific response to it. As seen from the counter of the respondent in the executing Court, there is no specific denial of the same. In these circumstances, the contention on behalf of the respondent that specific evidence should have been let-in through the first petitioner during his lifetime in the proceedings before the executing Court, cannot stand.
34. A specific allegation requires a specific denial and in the absence of it, a party making such allegation or averment can well depend on the 'principles of non-traverse', which the petitioners have rightly adopted in this case. This circumstance points out that the respondent was aware of the identity number of the mobile phone of the first petitioner MVR,J C.R.Ps.No.3321 of 2019 & batch 13 which he was making use of at the relevant period. It would not have been a difficult affair for the respondent to know the residence as well as the addresses of the petitioners, where they were living at the relevant point of time.
35. Particularly, when the return endorsement of the process-server on the notices taken out on the first occasion, viz., when the matter was posted for appearance of the petitioners on 30.08.2016 clearly indicated where these petitioners were then living, the respondent should have taken out notices after ascertaining their addresses where they were then living. Instead, he pursued to send the notices to the same address on the second occasion also and ultimately on the premise that the petitioners were avoiding receipt of notices, obtained orders from the Court for substituted service.
36. These circumstances are clearly pointed out on behalf of the petitioners to prove that there was serious suppression of fact amounting to fraud played on the Court as well as on the petitioners by the respondent and to avert participation of the petitioners in the execution proceedings. Similarly, the publication in 'Prajashakthi Telugu Daily' as the one having no circulation in their area, where the petitioners were living, is significantly pointed out. Even if the Telugu Daily has circulation at Bapatla, where according to the petitioners they were then living, it is rather difficult to believe that it had any circulation at Chennai, where the third petitioner was living then, as per the endorsement of the process-server referred to above.
37. In this context, Sri P.Veera Reddy, learned counsel for the petitioners, contending that there was no service of notice on the petitioners, when taken out by substituted service, relied on MVR,J C.R.Ps.No.3321 of 2019 & batch 14 observations in a ruling of erstwhile High Court of A.P. at Hyderabad in CHANDERGUPT ARORA v. SMT.SHAHEEN KHAN AND OTHERS1. In paras 7 and 8 of this ruling, a learned single Judge observed as to nature of substituted service, as under:
"7. Service of summons, in a suit, through publication is an extraordinary step. Before permitting such service, the Court must be satisfied that, either the defendant is purposefully avoiding the receipt of summons, or having regard to the facts of the case it is not possible to serve the notice. No finding was recorded by the trial Court, either way. The permission was accorded, only on the ground that the door was locked.
8. A citizen cannot be expected to keep the doors of his residence open throughout the day, expecting service of summons, or some such activity. In these days of mechanical life, a person has to be in the place of his business or activity, on different parts of the day. Take for instance, a person living alone, or both the spouses being employed. They go to offices in the morning duly locking their residence and come back in the evening. On every working day, their premises are found locked. The bailiff, or the postal official, as the case may be, has to make an endeavour, to serve the summons at a time when the party is available. It is a different thing, in case the premises are locked, purposefully with the object of avoiding service of summons. Such an intention can be culled out, only if proper verification is undertaken. On the sole ground that the premises were locked at a given point of time, the Court cannot be justified in permitting the substituted service. The effect thereof would be that a decree would emerge without the participation of the affected party. It would be a misnomer to call it as an adjudication.1
2009(6) ALT 451 MVR,J C.R.Ps.No.3321 of 2019 & batch 15
38. Though this ruling refers to a slightly different fact situation than the present case, effect of such service on the parties to the litigation referred to therein shall, indeed, be considered particularly when it is pointed out that it is an extraordinary step and also the duty of the Court in such circumstances.
39. Learned Senior Counsel also relied on YERAKAREDDY ANATHAREDDI v. SMT.DURBA LAKSHMI BHAVANI2 in the same context.
Relevant observations are in para-8, which are as under:
8. ................... It does not need any emphasis that the participation of the defendant in a suit, can be ensured by serving summons or notices upon him. Substituted service is an exception and can be resorted to only under the circumstances mentioned in Rule 4 of Order V, C.P.C. Before ordering substituted service, the Court must be satisfied that (a) there is reason to believe that the defendant is keeping out of the way, for the purpose of avoiding service; or (b) for any other reason, the summons cannot be served upon in the ordinary way. Not only the ground, on which the substituted service has become necessary, must be mentioned, but also the satisfaction of the Court about it must be recorded. Failure to follow such procedure, would certainly vitiate the entire exercise.
40. Further reliance is placed in MAGANTI KRISHNA DURGA v. MAGANTI ANIL KUMAR3. In para-6.b. of this ruling, a division bench of then High Court of A.P. at Hyderabad, in the same context observed as under:
"6.b. Even as per the Order V Rule 20(i) CPC, for ordering substituted service, it must be shown that the 2 2009(6) ALT 113 3 2015(5) ALT 346 (DB) MVR,J C.R.Ps.No.3321 of 2019 & batch 16 respondent is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way. It is only from such averment and on subjective satisfaction of the Court in relation thereto for reason to believe such averment, to order substitute service by affixing a copy of the summons on some conspicuous part of the house in which the respondent is known to have last resided or carries on business or personally works for gain and even for service by an advertisement in a newspaper, the notice to the respondent for appearance, further the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resides or carries on business or personally works for gain."
41. While elaborating the scheme of CPC, particularly in the context of procedure relating to execution of the decrees, learned Senior Counsel for the petitioners pointed out that at many stages, in order to give a fair opportunity to the parties, notice as an invariable necessity is pointed out, viz., under Rule 22 of Order 21 CPC, the effect of which is stated in Rule-23 of the same order and under Rule 54 as well as Rule 66 of Order 21 in case of immovable property involved is in the matter of similar nature. Thus, in these circumstances, it is contended that a heavy duty is cast on the executing Court to see that there was proper notices on the J.Drs. and it cannot be taken as a casual affair. In support of such contention, reliance is placed in DESH BANDHU GUPTA v. N L ANAND AND RAJINDER SINGH4. A reference to Order 21 Rule 66 and further proceedings thereon are considered in this ruling particularly pointing out that service of notice is a fundamental part of procedure touching upon the jurisdiction of the executing Court to take further 4 1994(1) SCC 131 MVR,J C.R.Ps.No.3321 of 2019 & batch 17 steps for sale of immovable property. Relevant observations in this ruling in paras 9 and 10 are as under:
9.--------------- Sub-rule (1) of Rule 66 enjoins the Court that the details enumerated in Sub-rule (2) shall be specified as fairly and accurately as possible. The duty to comply with it arises only after service of the notice on the judgment-debtor unless he voluntarily appears and given opportunity in the settlement of the value of the property. The absence of notice causes irremediable injury to the judgment debtor. Equally publication of the proclamation of sale under Rule 67 and specifying the date and place of sale of the property under, Rule 66(2) are intended that the prospective bidders would know the value so as to make up their mind to offer the price and to attend at sale of the property and to secure competitive bidders and fair price to the property sold. Absence of notice to the judgment debtor disables him to offer his estimate of the value who is better known of its value and to publicise on his part, canvassing and bringing the intending bidders at the time of sale. Absence of notice prevents him to do the above and also disables him to know fraud committed in the publication and conduct of sale or other material irregularities in the conduct of sale. It would be broached from yet another angle. The compulsory sale of immovable property under Order 21 divests right, title and interest of the judgment debtor and confers those rights, in favour of the purchaser. It thereby deals with the rights and disabilities either of the judgment debtor or the decree holder. A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor of his right, title and interest in his property without an opportunity.
The jurisdiction to sell the property would arise in a court only where the owner is given notice of the execution for attachment and sale of his property.
MVR,J C.R.Ps.No.3321 of 2019 & batch 18 It is very salutary that a person's property cannot be sold without his being told that it is being so sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible.
In Rajagopal Iyer v. Ramachandra Iyer ILR(1947 Mad.
288), the Full Bench held that a sale without notice under Order 21 Rule 22 is a nullity and is void and that it has not got to be set aside. If an application to set aside such a void sale is made it would fall under Section 47.
10. Above discussion do indicate discernible rule that service of notice on the judgment debtor is a fundamental part of the procedure touching upon the jurisdiction of the Execution Court to take further steps to sell his immovable property. Therefore, notice under Order 21 Rule 66(2), unless proviso is applied (if not already issued under Order 21 Rule 22), and service is mandatory. It is made manifest by Order 21 Rule 54(1A) brought on statute by 1976 Amendment Act with peremptory language that before settling the terms of the proclamation of sale. The omission thereof renders the further action and the sale in pursuance thereof void unless the judgment debtor appears without notice and thereby waives the service of notice.
42. These rulings clearly emphasize the need for issuance of notices and it's proper service, on the affected parties in the execution proceedings, particularly, the Judgment-debtors. When the legal position enunciated in these rulings is applied to the facts in this case, it is manifest that the rule of issuance of notice and particularly by means of a substituted service, was followed more in breach than application in the executing Court. Thus, it is clear that the petitioners were denied an opportunity to participate in the execution proceedings. It is nothing MVR,J C.R.Ps.No.3321 of 2019 & batch 19 short of a manipulation by the respondent, for his own gain or advantage.
43. When circumstances pointed out in this case that he had every opportunity of knowing the addresses of the petitioners at the relevant point of time when these notices were to be served, he cannot stick on to an abstract position as to description of the petitioners stated in the preliminary decree or final decree. Unfortunately, the executing Court also toed the line of the petitioners in application of law in this respect. On this sole ground alone, the orders under revisions have to be set aside.
44. Attempt on behalf of the respondent to point out the effect of Order 38 Rule 5 and Rule 7 CPC as well as Order 21 Rule 54 CPC relying on RAJENDER SINGH v. RAMDHAR SINGH5 cannot assist. Similarly, reliance is placed on behalf of the respondent in N.MOHANA KUMAR v. BAYANI LAKSHMI NARASIMHAIAH6 in similar context and to the effect that no further notice is necessary under Order 21 Rule 66(2) CPC, when notice was already taken out under Order 21 Rule 54 (1)(A) CPC is besides the point, in as much similar is not the situation in this case. Therefore, rejecting the contentions of the respondent, the contentions of the petitioners have to be accepted in this respect in the facts and circumstances of this case.
45. It is further contended that in the light of the fact situation, either filing a petition within 30 days of the knowledge of the proceedings, in terms of Article 123 of the Limitation Act, did not apply to the present case. When the petition was filed in the light of the averments made in the affidavit of the first petitioner referred to supra, 5 (2001) AIR (SC) 2220 6 (2000)1 ALT 472 MVR,J C.R.Ps.No.3321 of 2019 & batch 20 which remained unchallenged by the respondent which are to the effect that the petitioners came to know of the execution proceedings on 09.11.2017, when E.A.No.2 of 2018 and E.A.No.3 of 2018 on 17.11.2017 were filed within 30 days, they are within time as per Article 123 of Limitation Act. Thus question of bar of limitation did not arise in presenting these two applications.
46. Thus, this point is answered.
47. POINT No.2: The situation considered in point No.1 certainly affects the sale of the property in the execution petition. When it is found to be an outcome of manipulation by the respondent, it amounts an instance of fraud in getting the property sold, clearly affecting the execution process in this respect. This instance alone is sufficient to set aside the sale.
48. Contentions are also advanced by Sri P.Veera Reddy, learned Senior Counsel for the petitioners that when E.P. schedule property consists of a terraced house as well as a vacant site and in order to meet the requirements in the execution petition, the vacant site alone could have been sold, instead of the house. It is the further contention of the learned Senior Counsel that in terms of Order 21 Rule 64 CPC, it is a mandatory requirement for the executing Court to apply and particularly when preliminary decree passed in this case, clearly requires only such portion of the property, which is sufficient to satisfy the claim of the respondent could be subject matter of the sale in due course, selling the entire property is uncalled for. In support of this contention, reliance is placed by learned Senior Counsel in AMBATI NARASAYYA v. M.SUBBA RAO7 and BALAKRISHNAN v. MALAIYANDI KONAR8.
7 AIR 1990 (SC) 119 MVR,J C.R.Ps.No.3321 of 2019 & batch 21
49. Learned counsel for the respondent Sri S.Subba Reddy, pointed out that the extent of vacant site, is not sufficient to meet such requirement and even otherwise, there is no material on record to accept the contention of the petitioners. Therefore, learned counsel for the respondent contended that this circumstance need not be considered.
50. Further contentions are advanced by the Senior Counsel Sri P.Veera Reddy, on behalf of the petitioners that in the light of the fact situation, steps already taken in furtherance of execution, can have no bearing in the matter and therefore on the grounds urged on behalf of the petitioners, the sale shall be set aside as an outcome of fraud.
51. Learned counsel for the respondent contended that an application to set aside the sale shall be filed either in terms of Order 21 Rule 89 or 90 CPC within 60 days under Article 127 of Limitation Act and it is not the situation in the case. In support of such contention, reliance is placed in ANNAPURNA v. MALLIKARJUN9.
52. Further contentions are advanced on behalf of both the parties with reference to sale price. Learned counsel for the respondent in this context relied on SAHEB KHAN v. MOHD.YUSUFUDDIN10 and contending that there is no fraud in conduct of sale, reliance is also placed on SURESH KUMAR BHANDARI v. RAMESH KUMAR BHANDARI11.
53. In view of the findings recorded above, it is desirable to leave open such questions relating to period of limitation in setting aside sale and whether entire E.P. schedule property should be brought for sale to 8 AIR 2006(SC) 1458 9 2014(6) SCC 397 10 AIR 2006 (SC) 1871 11 2003(3) ALT 240 MVR,J C.R.Ps.No.3321 of 2019 & batch 22 realise the E.P. amount, for the executing Court to decide in future in the execution petition.
54. Sufficient for the purpose is the consideration relating to service of notices on the petitioners and consequent effect on the execution proceedings. When it is a prime circumstance reflecting fraud played by the respondent in bringing out this property for sale behind back of the petitioners, the course now left is to set aside the proceedings in execution petition so far went on, including the sale of the property and consequential steps went on, leading to admitted delivery of the property. Thus, this point is answered.
55. POINT No.3: In view of the findings on points No.1 and 2, these revision petitions have to be allowed setting aside the orders of the executing Court.
56. The petitioners shall be given an opportunity to contest the execution petition from the stage under Order 21 Rules 64/66 CPC including to file a counter on their behalf. As a condition precedent, it is desirable to direct the petitioners to deposit sale warrant amount as determined by the executing Court, as on 07.06.2017 within a time now being granted. Hence, this matter has to be remitted to the executing Court.
57. In the result, all the Civil Revision Petitions are allowed. Consequently, the orders in E.A.Nos.2, 3, 4 and 8 of 2018 and E.A.No.35 of 2017 in E.P.No.66 of 2016 in O.S.No.261 of 2008 respectively, on the file of the Court of learned I Additional District Judge, Guntur, are set aside. There shall be no order as to costs. The petitioners (J.Drs 2 and
3) are directed to deposit the sale warrant amount, determined by the executing Court as on 07.06.2017, as a condition precedent to take part MVR,J C.R.Ps.No.3321 of 2019 & batch 23 in the proceedings of this execution petition within six (06) weeks from this day. The executing Court is directed to afford an opportunity to the petitioners to file their counter, shall consider their objections in respect of the execution of the decrees and thereafter proceed in accordance with law. The respondent is permitted to withdraw whatever amounts deposited by him as purchase money as is permissible in law including poundage amount, if he is so advised. On application of the respondent, the executing Court is directed to order refund of the amount spent on purchase of stamps for engrossing sale certificate by issuing a certificate or voucher to present before appropriate authorities. Interim orders, if any, stand vacated. All pending petitions, stand closed.
____________________ M. VENKATA RAMANA, J Dt:17.02.2020 Rns HON'BLE SRI JUSTICE M. VENKATA RAMANA MVR,J C.R.Ps.No.3321 of 2019 & batch 24 C.R.Ps.Nos.3321, 3322, 3323, 3324 and 3325 of 2019 Date:17.02.2020 Rns