one of the bidder of Auction - filed claim petition under sec.47 read with sec.151- stating that the father of the Jdr is the full owner - Jdr is only had 1/3rd share and he is a tenant of it - execution court allowed the same - their lordships held that 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 - For the foregoing reasons, the impugned order of the Court below is set aside. Accordingly, the Civil Revision Petition is allowed.

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

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