Andhra HC (Pre-Telangana)
Prathi Bhogaraju vs Thammisetti Veeraraju And Ors. on 8 June, 2001
Equivalent citations: AIR2001AP465, 2001(4)ALT590, AIR 2001 ANDHRA PRADESH 465, (2001) 1 ANDHWR 107 (2001) 4 ANDH LT 590, (2001) 4 ANDH LT 590
ORDER B.S.A. Swamy, J.
1. Since the Sub-Inspector of Police produced the respondent before this Court, the N.B.W. against the latter (respondent) is recalled.
2. The facts of this case reveal in what callous manner the legal fraternity represent their clients before the Courts. Had the learned counsel appearing for the petitioner-auction-purchaser filed application for correcting the mistakes that crept in the sale certificate, dated 9-9-1997, issued by the Court below pursuant to the sale of schedule property on 10-5-1993, the respondent, an advocate-clerk, would not have stalled the execution roceedings by filing application after application for long one decade.
3. The facts of this case are that one Partti Ramanna filed suit, O.S, No. 356 of 1983, on the file of the learned Additional Junior Civil Judge. Tadepalli Gudem for recovery of a sum of Rs.4000/- with interest on the foot of a promissory-note executed by the respondent herein. Along with the said suit, the said Ramanna also filed Interlocutory application, I.A. No. 1300 of 1983, seeking attachment of 1/3rd of the petition schedule property situated at Madhavaram village. Tadepalli Gudem Mandal. West Godavari District. The said learned Junior Civil Judge ordered the said I.A. No. 1300 of 1983. On 10-10-1983 the Amin executed the warrant and attached the petition schedule property. Subsequently the said suit was decreed on 7-4-1988. Thereafter, the decree-holder filed E.P. No.3 of 1990. As stated supra, the respondent being an advocate-clerk, created Innumerable hurdles in execution of the decree.
4. From the narration of the above facts, it is seen that on 11-6-1999 the respondent filed E.A. No.271 of 1990 under Order 21 Rule 106 C.P.C. for setting aside the ex parte order, dated 6-6-1990. The Court below dismissed the said E.A. on 23-8-1990. Having got the case adjourned for some time, the respondent filed another E.A.No.76 of 1991 on 4-3-1991 for Issuing summons to two witnesses. The said E.A. No. 76 of 1991 was dismissed on 12-3-1991. Then the respondent filed E.A. No.247 of 1991 under Section 151 C.P.C. on 2-7-1991 for reopening the case. The said E.A.No.247 of 1991 was allowed on 5-7-1991. It seems that the respondent filed another E.A. under Order 13 Rule 2 C.P.C. on 28-6-1991 for receiving two documents and the Court below received two documents on 11-7-1991. On 4-10-1991 the respondent filed two E.As, one (E.A.No. 488 of 1991) under Section 151 and the other (E.A. No. 489 of 1991) under Order 18 Rule 17 C.P.C. for reopening the case and for recalling the decree-holder. The Court below allowed the said E.A. Nos. 488 and 489 of 1991 on 30-10-1991. When the Court was taking steps to settle the sale proclamation, the respondent filed another application, E.A. No. 90 of 1992, for adjourning the sale for settlement of issues. The said E.A. No. 90 of 1992 was dismissed on 24-2-1992. Again on 29-1-1992 the respondent filed E.A. No.36 of 1992 under Section 151 C.P.C. for reopening the matter to produce important documents. But, at the same time, he did not specify what were the important documents. After three adjournments, the said E.A. No. 36 of 1992 was allowed on 3-2-1992. Thereafter, the respondent filed E.A. No.37 of 1992 under Order 18 Rule 17-A C.P.C. on 21-1-1992 for recalling D.W.2. The said E.A. No.37 of 1992 was allowed on 3-2-1992. It is not known how and under what circumstances, the learned Junior Civil Judge in office entertained those applications in execution proceedings. Thereafter, on 3-3-1992 the respondent filed E.A. No. 47 o'f 1992 under Order 13 Rule 2 C.P.C. In E.A. Nos. 36 and 37 of 1992 for receiving the documents. The said E.A. No.47 of 1992 was allowed on the same day. Thirteen months later, the respondent filed E.A. No. 252 of 1993 under Order 21 Rules 26 and 29 C.P.C. on 10-5-1993 for adjourning the sale and the Court below seems to have dismissed that application on the same day and conducted the sale. On 7-6-1993, the respondent filed E.A. No. 256 of 1993 under Order 21 Rule 85 C.P.C. for resale of the property alleging that the petitioner failed to deposit the remaining 3/4th sale consideration, and thus he could get the matter adjourned for 35 times. Ultimately the said E.A, No. 256 of 1993 was dismissed on 13-7-1995. Aggrieved by the said order, the respondent seems to have filed C.R.P. No. 3092 of 1995 and obtained Interim stay of confirmation of sale on condition that he would deposit half of the sale consideration. Ultimately the said C.R.P. No. 3092 of 1995 seems to have been dismissed on 2-7-1997. Having lost the hope of dragging the matter further by himself, he pressed into his daughter Gokavarapu Salyavarta Padmaja Rani who tiled on 20-7-1995 two E.As., one under Order 21 Rules 29 and 39 G.P.C. and another under Order 21 Rule 58 C.P.C., raising objections for the sale, conducted and for staying all execution proceedings pending adjudication of the objections raised by her. The Court rejected those applications on 12-9-1995 even without numbering those I .As on the ground that the sale was already held and as such those two applications were not maintainable. Two years thereafter, the said Rani seems to have filed another E.A. under Order 21 Rule 58(2) C.P.C. and under Section 29(A)(i) and (ii) of the Hindu Succession Act, on 7-8-1997 for passing decree in her favour allotting 'A' schedule land as a share to her and cancel the sale held on 10-5-1993. After three adjournments, that application was also dismissed. On 22-8-1997 the respondent himself filed another E.A. under Order 21 Rule 26 C.P.C. seeking stay of all further proceedings on the ground that he was seeking review of the order by the High Court. That application was rejected on 1-9-1997. Again on the same day, i.e. 1-9-1997. the respondent filed E.A. No.358 of 1997 under Order 21 Rule 90 C.P.C. for setting aside the sale of petition schedule property. That application was dismissed on 30-9-1997. Thereafter, the respondent filed E.A. No. 413 of 1997 on 16-10-1997 for issuing cheque for a sum of Rs.2,170/- which was deposited by the petitioner. The said E.A. No. 413 of 1997 was allowed on 29-10-1997. While the said Rani filed O.S. No.95 of 1997 on the file of the learned Senior Civil Judge, Tadepalll Gudem against the respondent, the petitioner and others for partition of the property sold in E.P. No.3 of 1990, the respondent himself O.S. No.201 of 1998 on the the of the learned Junior Civil Judge. Tadepalli Gudem against the petitioner and others for permanent injunction in respect of the property sold in E.P. No.3 of 1990 restraining the petitioner and others from removing irrigation channel to prevent flow of water to his fields though the poor auction-purchaser could not take delivery of the possession of properly by that time. Against the order, dated 3-8-1998, in I.A. No.916 of 1998 in O.S.No.201 of 1998, the respondent carried the matter in appeal, C.M.A. No. 18 of 1988, to the learned Senior Civil Judge, Tadepalli Gudem. The respondent filed E.A. No. 119 of 1999 under Order 21 Rule 29 C.P.C. for staying all further execution proceedings until disposal of C.M.A. No. 18 of 1998 and O.S. No.95 of 1997 on the file of the learned Senior Civil Judge, Tadepalli Gudem. The Court below dismissed that application on 26-6-1999 as not maintainable. After some time, the respondent also filed O.S. No. 150 of 1998 on the file of the learned Junior Civil Judge, Tadepalli Gudem against the petitioner and four others seeking permanent Injunction in respect of the property sold in E.P. No.3 of 1990. Along with the said suit, the respondent also filed I.A. No. 633 of 1998 seeking temporary injunction and the said application was dismissed on 15-11-1999. Then the respondent carried the matter in appeal by filing C.M.A. No. 14 of 2000 on the file of the learned Senior Civil Judge. On 1-2-1999 the respondent filed E.A. No. 119 of 1999 under Order 21 Rule 29 C.P.C. for staying all further execution proceedings until disposal of C.M.A. No. 18 of 1998 filed by him against the order of the learned Junior Civil Judge in I.A. No. 916 of 1998. dated 3-8-1998, and O.S. No.95 of 1997 filed by his daughter seeking partition. After six adjournments, E.A. No. 119 of 1999 was dismissed as not maintainable on 26-6-1999. Even before this application was dismissed, he filed E.A. No.212 of 1999 on 15-6-1999 under Order 12 Rule 8 C.P.C. for a direction to the petitioner to produce the documents to prove the property mentioned in the sale certificate divided among the family members of the respondent. Perhaps the provocation for filing this application was that the children of his deceased brothers pleaded oral partition and started contending that they were in possession and enjoyment of their respective shares and that even the Revenue authorities Issued pattadar pass books to them. While the respondent was ransacking the proceedings of the Court by filing application after application, the petitioner seems to have filed E.A. No. 213 of 1999 seeking delivery of possession of the property that was sold to him. The application filed by the petitioner for delivery of possession was dismissed by the Court on 12-7-1999 on the ground that the sale certificate issued was not in conformity with the schedule given in the petition seeking delivery of possession. The application filed by the respondent was dismissed on the ground that the application for delivery of possession was dismissed. On 15-6-1999 Itself, the respondent filed E.A. Nos. 275 and 276 of 1999 under Order 12 Rule 18 C.P.C. for granting permission to examine the deponents of the affidavits, i.e., the children of his brothers who started pleading partition by giving affidavits. Those two applications were dismissed on 21-6-1999. As the respondent was getting exhausted, he pressed into service his son by name Venkata Nagendra Kumar who filed claim application, E.A, No. 236 of 1999, under Order 21 Rule 58 C.P.C. After 11 adjournments, that application was dismissed on 16-2-2000 as devoid of merits.
5. From the narration of the facts. It is seen that the respondent pressed into service all the rules under Order 21 C.P.C. relating to execution proceedings and also Section 151 C.P.C. apart from filing suits as mentioned above. After the proceedings practically came to an end after dismissal of C.R.P. No. 3092 of 1995 on 2-7-1997, the sale proceedings became final. The facts stated above show the casual manner in which the judicial officers entertained those applications and allowed the respondent, to drag on the proceedings for so many years. It is nothing but abuse of process and allowed the Respondent to indulge in vexatious litigation.
6. I feel it is a fit case where I can exercise the powers under S.35-A C.P.C. which empowers the Court to award compensation to the either side if the claim or defence set up by the party concerned proves to be false or vexatious for the trouble he has given to his rival party for all these years. To deter this unscrupulous litigant (respondent), I am inclined to direct the respondent to pay Rs.3000/- as compensation to the petitioner for vexatious and false claims and defence set up by him from time to time over the last decade.
7. The misfortune of the petitioner did not end with this. The great advocate who represented him did not see all these years that the sale certificate given by the Court below is not in conformity with the petition schedule property that was attached by the Court. It is not in dispute that there is variation both in survey numbers and extents mentioned in the sale certificate. The discrepancies occurred in the Sale Certificate in relation to the particulars of the petition schedule property sold in auction on 10-5-1993 in E.A. No. 118 of 1999 in E.A. No. 118 of 1999 in E.P. No. 3 of 1990 in O.S. No. 856 of 1993 are shown here under :
Sl. No. As per the schedule attached to the petition As per the original F.M.B., of Madhavaram Village As per the Sale Certificate R. S. No. Full extent Ac. Cts.
Extent Ac. Cts.
R. S. No. Full extent Ac. Cts.
Extent Ac. Cts.
R.S. No. Full extent Ac. Cts.
Extent Ac.
Cts.1 791/1
0.99 0.52 791/1 0.99 0.52 791/2 0.99 0.52 2 794/2 1.19 1.19 794/2 1.19 1.19 794/2 1.19 0.52 3 794/3 2.34 2.34 794/3 2.34 2.34 794/2 794/2 2.34 4 791/2 3.43 1.55 791/2 3.43 1.55 791/2 3.43 1.55
8. From the above, it is seen that the particulars of land shown in F.M.B. and the schedule to the petition seeking attachment of the properties are in conformity with each other. But, in the sale certificate, instead of mentioning R.S. No. 791/1 in respect of first item. R.S.No.791/2 was shown. Instead of mentioning Ac. 1-19 cents in respect of second Item, only Ac. 0.52 cents were mentioned. Instead of showing R.S. No. 794/3 in respect of third item, R.S. No. 794/2 was mentioned. The respondent says that the sale certificate given by the Court does not contain any of the boundaries to the 1/3rd of the property that was brought to sate. In fact, the respondent states that he raised that issue at the beginning itself. Even then the learned counsel for the petitioner did not take necessary steps to get the entries corrected in the sale certificate under S. 152 C.P.C.
9. The learned counsel for the petitioner in this Court strenuously contends that even though the learned counsel failed in its duties, the Court can correct the mistakes suo motu. Such a course is not open before this Court in the peculiar circumstances of the case. The property that was attached was only the undivided 1/3rd share of the respondent during the pendency of the suit and the said property was brought to sale. From this it is seen that the petitioner purchased only 1/3rd of the undivided share of the respondent and thereby he stepped into the shoes of the respondent to exercise the right of ownership. But admittedly this property being a joint family property, by virtue of the Court sale the petitioner becomes co-sharer along with others entitled to the property. In fact, the legal representatives of the brothers of the respondent filed application seeking permission of the Court to come on record by stating that there was an oral partition between the respondent and others and that they were exclusively in possession and enjoyment of the properties allotted to their respective share. In fact, they have also produced pattadar passbooks before this Court. They had already filed a memo stating that they had no objection if the petitioner was allowed to take possession of the remaining 1/3rd property. But the respondent started contending that a partition took place between the family members during the lifetime of his late father and that this extent of land had to be shared equally by three brothers and as his two brothers pre-deceased his father and the legal heirs had not exercised their rights of ownership over the property for statutory period, they are not entitled to any share in the property, he alone is entitled to the entire suit property to the exclusion of the legal heirs of his deceased brothers. The law is well settled on this aspect. A coparcener cannot plead limitation against another coparcener when he seeks partition of the property unless the 'person in possession of the property pleads ouster. In the peculiar circumstances of the case, the petitioner is entitled to symbolic possession of the 1/3rd of the property and he cannot seek delivery of 1/3rd undivided share in the property in the execution proceedings. An application for delivery of possession is straightway not maintainable in law.
10. The only course open to the petitioner to enjoy the fruits of the decree is to file a suit against co-sharers for partition. Hence liberty is given to the petitioner to get the mistakes in the sale certificate corrected and then file a suit against the respondent and the legal heirs of his deceased brothers. As and when suit is filed the Court below shall dispose of the suit within a period of three months and thereafter give effect to the decree by executing the decree within one month as the other co-sharers had no objection to leave 1/3rd of the property set apart for the respondent. As practically the impleaded party-respondents 2 to 8 are supporting the case of the petitioner, the issue to be decided in the suit would be whether the plea of ouster pleaded by the respondent can be sustained in law or not? Hence the above direction is given to the Court below to dispose of the suit and also to put quietus to the long drawn legal proceedings.
11. With the above observation, the civil revision petition is disposed of. There shall be no order as to costs except the costs awarded against the Respondent earlier for vexatious litigation under Section 35-A C.P.C.