claim petition to raise attachment basing on agreement of sale = the alleged agreement of sale between the petitioner and the 2ndrespondent is a collusive document brought into existence after the schedule property was attached to defeat his claim = The petitioner who is examined as PW 1 in his evidence has stated that he shifted his family to Hyderabad in the year 2008 and purchased the schedule property four years prior to shifting of his residence to Hyderabad. But in the petition, he stated that he purchased the property on 10-02-2010 from the 2nd respondent. PW 3 stated that the husband of the 2ndrespondent brought him to the Court to give evidence and that he signed on the affidavit at the request of the husband of the 2ndrespondent. PW 4 has deposed the schedule property was delivered to the petitioner by the 2nd respondent in his presence but it is the case of the petitioner that un-possessory agreement of sale was executed by the 2nd respondent in his favour. In the circumstances, the lower Court rightly dismissed the petition holding that the petitioner has failed to prove the alleged agreement of sale and, therefore, he is not entitled to raise the attachment existing against the schedule property

                        THE HON'BLE SRI JUSTICE N.V. RAMANA

                         

                        CIVIL REVISION PETITION No. 130 OF 2013

 

ORDER:

The petitioner filed the present revision petition under Section 115 of CPC aggrieved by order dated 16-10-2012 passed by the Principal Senior Civil Judge, Gudivada in E.A No. 69 of 2011 in E.P No. 26 of 2010 in O.S No. 297 of 2006.

The petitioner stated that he purchased the petition schedule property of an extent of Ac.1.75 cents situated in R.S No.35/3C of Gurivindagunta Village from the 2^nd respondent – judgment debtor on 10-02-2010 under a non-promissory agreement of sale for Rs.5,69,000/- and that he paid an amount of Rs.4,50,000/- towards advance sale consideration and no time limit was fixed for payment of the balance consideration of Rs.1,19,000/-.  The 2^nd respondent agreed to execute a registered document after receiving the balance of sale consideration and put the petitioner in possession of the schedule property.  Subsequently the petitioner went to Hyderabad for doing electrical contract works.  He used to demand the 2^nd petitioner to execute the registered sale deed after receiving the balance of sale consideration and the 2^nd respondent postponed the same on one pretext or the other.  

It is the case of the petitioner that in the third week of January, 2011 he came to know that the schedule property was attached in execution of a decree obtained by the 1^strespondent against the 2^nd respondent and the same was brought for sale.  

The petitioner states that there is collusion between the respondents in bringing the schedule property to sale to defeat his right over the same and that he is ready and willing to pay the balance sale consideration amount to the 1^st respondent so as to obtain a regular sale deed.  

Hence, he filed the EA before the lower Court praying to declare that he is the absolute owner of the petition schedule property and to raise attachment in respect thereof.

The 1^st respondent alone contested the matter stating that the alleged agreement of sale between the petitioner and the 2^ndrespondent is a collusive document brought into existence after the schedule property was attached to defeat his claim and that the petitioner has no capacity to purchase the schedule property. 

The lower Court after examining PWs 1 to 4 on behalf of the petitioner and RW 1 on behalf of the 1^st respondent and after perusing the record dismissed the petition filed by the petitioner.  Hence the revision.

Heard the learned counsel for the petitioner and perused the material available on record.

The petitioner who is examined as PW 1 in his evidence has stated that he shifted his family to Hyderabad in the year 2008 and purchased the schedule property four years prior to shifting of his residence to Hyderabad. But in the petition, he stated that he purchased the property on 10-02-2010 from the 2^nd respondent.  

Further, though he claimed that he obtained a loan of Rs.1,00,000/- from Urban Bank of Gudivada for paying part of sale consideration, he did not file any document to show that he had obtained any loan.  The petitioner also stated that he borrowed an amount of Rs.2,00,000/- from two persons, but he did not choose to examine them.  

PW 3 stated that the husband of the 2^ndrespondent brought him to the Court to give evidence and that he signed on the affidavit at the request of the husband of the 2^ndrespondent.  

PW 4 has deposed the schedule property was delivered to the petitioner by the 2^nd respondent in his presence but it is the case of the petitioner that un-possessory agreement of sale was executed by the 2^nd respondent in his favour.

In the circumstances, the lower Court rightly dismissed the petition holding that the petitioner has failed to prove the alleged agreement of sale and, therefore, he is not entitled to raise the attachment existing against the schedule property

I do not see any illegality or irregularity in the order passed by the lower Court.  The civil revision petition is devoid of merits and it is accordingly dismissed.

               N.V. RAMANA, J

24-01-2013

ks

                         

                         

                         

                         

                         

                         

                        THE HON'BLE SRI JUSTICE N.V. RAMANA

                         

                        CIVIL REVISION PETITION No. 130 OF 2013

                         

                        Dated: 24-01-2013

                         

Between:

Abdyl Vazen

... PETITIONER

              AND

                         

Polvarapu Jagan Mohan Rao and another

... RESPONDENTS