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Tuesday, January 20, 2015

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITION No.1985 OF 2014 19-12-2014 Kottu Veera Venkata Satyanarayana .Petitioner Padala Ramanna Dora and others..... Respondents

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.1985 OF 2014    

19-12-2014

Kottu Veera Venkata Satyanarayana .Petitioner

Padala Ramanna Dora and others..... Respondents

Counsel for the Petitioner: Sri Rama Murthy P V S A

Counsel for Respondents: Sri S.Subba Reddy.

<Gist :


>Head Note:

? Cases referred:

(1)     AIR 2003 (SC) 3524
(2)     AIR 1998 (AP) 247

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITON No.1985 of 2014  
ORDER:

        This revision is preferred by the petitioner in E.A.SR.No.2714
of 2014 in E.P.No.63 of 2011 in O.S.No.468 of 2008 on the file of the
Junior Civil Judges Court, Anaparathy. The 1st respondent herein
was the auction purchaser while the 2nd respondent was the decree
holder and the 3rd respondent was the judgment debtor. The
petitioner/claim petitioner is a stranger/third party, though the
judgment debtor was his brother.
        The E.P.No.63 of 2011 is moved by the 2nd respondent/decree
holder for executing the decree passed in O.S.No.468 of 2008 and in
that process immovable property of a total extent of 82  cents has
been brought to sale by public auction on 09.12.2011. The 1st
respondent emerged as the best bidder and his offer to purchase the
schedule property for Rs.2,25,000/- has been accepted by the Court
and the sale was accordingly confirmed on 04.06.2012 by the Junior
Civil Judge at Anaparthi. Thereafter the 1st respondent/auction
purchaser moved E.A.No.127 of 2012 under Rule 95 of
Order XXI, CPC for delivery of the property purchased by him.
Accordingly the immovable property has been delivered on
16.11.2013 and hence E.A.No.127 of 2012 was closed on
26.11.2013. Thereafter, the petitioner herein moved an application
on 23.01.2014 bearing E.A.SR.No.2714 of 2014 in E.P.No.63 of 2011
in O.S.No.468 of 2008 for restoration of possession and redelivery of
38 cents of land lying in R.S.No.348/1 of Kapavaram village out
of 82  cents of land delivered to the auction purchaser. It is the
claim of the petitioner herein that he is the absolute owner of land of
an extent of 38 cents and that he is in possession and enjoyment of
the said land in his own right and the judgment debtor without
having any manner of right has allowed the said land to be sold by
public auction to satisfy the decree and hence dispossession of the
petitioner herein from land of an extent of 38 cents is wrongful and
hence he should be put back in possession of the said land.  It is this
application, which was dismissed by the Junior Civil Judge,
Anaparthi by order dated 15.04.2014 on the ground that the E.P.
itself was disposed of and the immovable property was also delivered
to the auction purchaser and at this belated stage the petitioner
cannot maintain the said application and at any rate he should have
filed the application during the pendency of the main E.P. and hence
the petition is not maintainable and it was directed to be returned to
the petitioner. It is this order, which is challenged in this revision.
        It should be noted that the petitioner being a third party to the
Civil Suit O.S.No.468 of 2008 as well as E.P.No.63 of 2011 has filed
the present application under Order XXI Rule 99 and 101 CPC as
well as under Sections 47 and 151 CPC.
        Heard the learned counsel for the petitioner as well as learned
counsel for the 1st respondent/auction purchaser.
        The auction purchaser has been delivered possession of
agricultural land of a total extent of 82  cents which included 38
cents, claimed herein by the petitioner as owned and belonging to
him in his own right, independent of the right of the 3rd respondent.
The question which is required to be considered by the Court is
whether the application under Order XXI Rule 99 read with 101 CPC
is maintainable or not.
        Rule 99 of Order XXI CPC dealt with dispossession by decree-
holder or by purchaser thereof. It clearly spells out that where any
person other than the judgment debtor is dispossessed of immovable
property by the holder of a decree for the possession of such property
or, where such property has been sold in execution of a decree, by
the purchaser thereof, he may make an application to the Court
complaining of such dispossession. Sub-rule 2 thereof makes it
further clear that where any such application is made, the Court
shall proceed to adjudicate upon the application in accordance with
the provisions herein contained. It is, therefore, very clear that where
any person other than the judgment debtor is disposed of his
immovable property either by the decree holder or by the purchaser
of such immovable property, such a person who has been so
dispossessed may move an application complaining of such
dispossession and all questions including questions of right, title and
interest in the property in question arising between the parties shall
be determined by the Court. Therefore, the only question which is
required to be examined at the initial stage for entertaining an
application under Rule 99 of Order XXI CPC was whether the person
who moved the application claimed a right independent of the
judgment debtor or not.  A person claiming through or under the
judgment debtor can be dispossessed in execution of a decree passed
against the judgment debtor but not a person who is in possession of
the property in question in his own independent right.  It would be
appropriate to notice at this stage the Judgment rendered by the
Supreme Court in H.Seshadri v. K.R.Natarajan  wherein it is set
out as under:
        For the purpose of considering an application under
Order XXI Rules 99 and 100 of the Code of Civil Procedure
what was required to be considered was as to whether the
applicant herein claimed a right independent of the judgment-
debtor or not. A person claiming through or under the
judgment-debtor may be dispossessed in execution of a decree
passed against the judgment-debtor but not when he is in
possession of the premises in question in his own
independent right or otherwise.

        In view of this principle there is no difficulty whatsoever in
holding that the application moved by the petitioner herein under
Rule 99 Order XXI CPC is certainly maintainable. May be the
mentioning of Section 47 CPC by the petitioner herein is
inappropriate. The petitioner being a third party, he cannot maintain
any application under Section 47 CPC.
        Further, a Division Bench of this Court in Pavan Kumar v.
K.Gopalakrishna  in paragraph No.5 has dealt with the relevant
principle in the following words.
        The third party aggrieved by dispossession in execution
of a decree, may make an application to the Court
complaining such dispossession. If he makes such an
application, all questions including questions relating to right,
title and possession in the properties shall be decided in that
application as if it were a full-fledged suit for title and
possession and no separate suit would lie for this purpose.
However, an appeal lies under Rule 103 as if the order passed
on such application were a decree. We are unable to visualise
the provisions of Rules 99 to 101 even after amendment as
laying down an exhaustive Code on the remedies of the third
parties dispossessed in execution of a decree for possession.
The remedy under Order 21 Rule 99 CPC is no doubt one of
the remedies available to the person dispossessed. But, we are
unable to construe Order 21 Rule 99 as placing a bar on
bringing an independent suit for possession, without filing an
application under the said Rule. Such a bar, in our view, does
not arise even by necessary implication.

        In this view of the matter, the order passed by the learned
Junior Civil Judge, Anaparthy  on 15.04.2014 is not sustainable. It
is accordingly set aside. The E.A.SR.No.2714 of 2014 is restored and
now the Court shall proceed to consider the same on merits subject
to all such objections that might be raised on merits as well as the
objection that the application is barred by limitation shall be
considered independently and uninfluenced in any manner by the
observations made herein above.
        The Civil Revision Petition is accordingly allowed. No order as
to costs.

        The miscellaneous petitions, if any pending in the revision,
shall stand closed.
______________________________________    
JUSTICE NOOTY RAMAMOHANA RAO          
19.12.2014

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