PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9754
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE
C.R.P.Nos.3785 & 3786 of 2011 and C.M.A.No.937 of 2011
20.03.2013
I.Aga Reddy and others.
S.Dharneet Singh and another.
Counsel for the petitioners: Sri J.V.Suryanarayana
Counsel for 1st respondent: Sri Kishore Rai
<GIST:
>HEAD NOTE:
?Cases referred:
C.R.P.Nos.3785 & 3786 of 2011 and C.M.A.No.937 of 2011
COMMON JUDGMENT : (Per LNR,J)
These two revisions and appeal arise out of a common order, dated 17.08.2009
passed by the learned Chief Judge, City Civil Court, Hyderabad in O.S.No.379 of
2008.
Hence, they are disposed of through a common order.
For the sake of convenience, the parties are referred to as arrayed in the
revisions.
The 1st petitioner had two sons, by name Devender Reddy, the husband of 2nd
petitioner and father of petitioners 3 and 4, and Rajender Kumar, 2nd respondent
herein.
The 1st petitioner is an Advocate, and earlier, he practiced at
Karimnagar.
He acquired an item of property bearing plot No.1352 situated at
Jubilee Hills, Hyderabad (for short 'the property') in the year 1965.
In the
year 1986, he got the property registered in the name of the 2nd respondent and in the year 1987, a house was constructed said to be by the joint family.
The
1st petitioner shifted his practice to Hyderabad in the year 1991. The
partition in the family is said to have taken place in the year 1992 and that
the property was allotted to the share of the 1st petitioner.
When there was
some resistance by his two sons, the 1st petitioner filed O.S.No.1161 of 1996 in
the Court of IV Senior Civil Judge, City Civil Court, Hyderabad, against them.
A compromise decree was passed on 30.07.1999, whereunder it was agreed that the 2nd son of the 1st petitioner viz., Devender Reddy, shall be owner of the property but the 1st petitioner shall have the right to enjoy the same during his life time.
It was also provided that the 2nd respondent be paid a sum of
Rs.23,00,000/-.
The 1st respondent filed O.S.No.379 of 2008 in the Court of Chief Judge, Hyderabad, for sale of the mortgaged property. It was pleaded that the 2nd respondent mortgaged the property by deposit of title deeds on 17.07.1996 and that the amount together with interest is Rs.1,22,30,000/-. An ex parte preliminary decree was passed on 26.02.2009.
On coming to know this, the petitioners filed I.A.No.2519 of 2009 under
Order I
Rule 10 C.P.C. with a prayer to implead them as defendants in the suit,
I.A.No.2518 of 2009 under Order IX Rule 13 CPC with a prayer to set aside the ex parte preliminary decree, dated 26.02.2009 and I.A.No.3920 of 2009 under
Order I
Rule 10 CPC with a prayer to implead them as respondents in the final decree proceedings.
They pleaded that the so-called mortgage said to have been created by the 2nd respondent in favour of the 1st respondent is a fictitious one and that the same is evident from the fact that the 2nd respondent did not make a mention of it, when the compromise decree was passed in O.S.No.1161 of 1996 on
30.07.1999.
Other grounds were also urged. The applications were resisted by
the 1st respondent.
Through common order, dated 17-08-2011, the trial Court dismissed the
applications. Hence, the two revisions and an appeal.
Sri J.V.Suryanarayana, learned counsel for the petitioners submits that the 2nd
respondent has been troubling the 1st petitioner and the rest of the family on
one pretext or the other for the past several decades and even after receiving
substantial amount of Rs.23,00,000/- under the compromise decree in O.S.No.1161
of 1996, he created a fictitious mortgage in collusion with the 1st respondent.
He contends that the very fact that the 2nd respondent remained ex parte, even
after receiving the summons discloses that he was determined to cause troubles
to the petitioners, who are in possession and enjoyment of the property.
Sri Kishore Rai, learned counsel for the 1st respondent, on the other hand,
submits that the trial Court was satisfied with the existence of mortgage and
genuinity thereof and a preliminary decree was passed in the suit.
He contends
that the sole basis for the right claimed by the petitioners is the compromise
decree, dated 30.07.1999 in O.S.No.1161 of 1996 and since the decree was not registered as provided under Section 17(f) of the Registration Act, it cannot be acted upon. He submits that the trial Court has taken correct view of the
matter.
The relationship between the parties is already mentioned. The record discloses
that the terms between the petitioners on one hand and the 2nd respondent on the
other hand, were not cordial.
Under the compromise decree, dated 30.07.1999 in
O.S.No.1161 of 1996, the petitioners paid Rs.23,00,000/- to the 2nd respondent,
as consideration for the latter to relinquish his right against the property.
Prima facie, this Court finds that in case, there existed a mortgage, dated
17.07.1996 in favour of the 1st respondent vis--vis the property, the 2nd
respondent would have revealed it to the petitioners, when the compromise decree
was passed on 30.07.1999.
Notwithstanding the fact that the decree was not
registered, the petitioners cannot be said to be strangers to the present
dispute.
On the other hand, the decree in O.S.No.1161 of 1996 can be treated as
the basis to recognize the right of the persons in possession of the property.
They cannot be relegated to a position, worse than that of the petitioners in an
application filed under Rule 58 of Order XXI C.P.C.
Further the 2nd respondent
has remained ex parte, obviously because he did not have anything to loose.
The
question as to whether the mortgage pleaded by the 1st respondent is true, legal
and binding on the petitioners needs to be decided on merits.
Though the trial Court has undertaken extensive discussion on merits, we are of
the view that this is not the stage to express any final opinion on the rights
of the parties.
The application filed under Order I Rule 10 C.P.C. need not
depend upon the existence of absolute rights. It would be sufficient, if the
parties have some interest in the property, which is the subject matter of the
suit. The petitioners can certainly fall back not only upon the decree in
O.S.No.1161 of 1996 but also on the relationship in the family.
The contention
of the respondents that third parties cannot be impleaded in a suit, after a
preliminary decree is passed, cannot be countenanced.
The reason is that in any
suit, in which a final decree is contemplated, it is deemed to be pending till
such final decree is passed.
Therefore, the petitioners deserve to be impleaded
in the suit as defendants and as respondents in the final decree proceedings.
We refrain from expressing any view as to whether a case is made out for setting
aside the ex parte decree.
We leave that question to be dealt with by the trial
Court, the reason being that the issue was not addressed by the trial Court,
once it has taken the view that the petitioners are not entitled to be impleaded
as parties.
Hence, C.R.P.No.3785 of 2011 is allowed and the order passed in I.A.No.2519 of 2011 is set aside.
As a result, the said I.A. is allowed and the petitioners
herein are added as defendants 2 to 5 to the suit.
C.R.P.No.3786 of 2011 is allowed and the order in I.A.No.3920 of 2009 is set aside.
As a result, the said I.A. is allowed and the petitioners herein are
impleaded as respondents 2 to 5 in I.A.No.2304 of 2009, filed for final decree.
C.M.A.No.937 of 2011 is allowed and the order passed by the trial Court in I.A.No.2518 of 2009 is set aside.
The matter is remanded to the trial Court, for
disposal on merits.
The miscellaneous petitions filed in these revisions and appeal shall also stand
disposed of. There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J.
_______________________
K.G.SHANKAR, J.
Dt:20.03.2013
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE
C.R.P.Nos.3785 & 3786 of 2011 and C.M.A.No.937 of 2011
20.03.2013
I.Aga Reddy and others.
S.Dharneet Singh and another.
Counsel for the petitioners: Sri J.V.Suryanarayana
Counsel for 1st respondent: Sri Kishore Rai
<GIST:
>HEAD NOTE:
?Cases referred:
C.R.P.Nos.3785 & 3786 of 2011 and C.M.A.No.937 of 2011
COMMON JUDGMENT : (Per LNR,J)
These two revisions and appeal arise out of a common order, dated 17.08.2009
passed by the learned Chief Judge, City Civil Court, Hyderabad in O.S.No.379 of
2008.
Hence, they are disposed of through a common order.
For the sake of convenience, the parties are referred to as arrayed in the
revisions.
The 1st petitioner had two sons, by name Devender Reddy, the husband of 2nd
petitioner and father of petitioners 3 and 4, and Rajender Kumar, 2nd respondent
herein.
The 1st petitioner is an Advocate, and earlier, he practiced at
Karimnagar.
He acquired an item of property bearing plot No.1352 situated at
Jubilee Hills, Hyderabad (for short 'the property') in the year 1965.
In the
year 1986, he got the property registered in the name of the 2nd respondent and in the year 1987, a house was constructed said to be by the joint family.
The
1st petitioner shifted his practice to Hyderabad in the year 1991. The
partition in the family is said to have taken place in the year 1992 and that
the property was allotted to the share of the 1st petitioner.
When there was
some resistance by his two sons, the 1st petitioner filed O.S.No.1161 of 1996 in
the Court of IV Senior Civil Judge, City Civil Court, Hyderabad, against them.
A compromise decree was passed on 30.07.1999, whereunder it was agreed that the 2nd son of the 1st petitioner viz., Devender Reddy, shall be owner of the property but the 1st petitioner shall have the right to enjoy the same during his life time.
It was also provided that the 2nd respondent be paid a sum of
Rs.23,00,000/-.
The 1st respondent filed O.S.No.379 of 2008 in the Court of Chief Judge, Hyderabad, for sale of the mortgaged property. It was pleaded that the 2nd respondent mortgaged the property by deposit of title deeds on 17.07.1996 and that the amount together with interest is Rs.1,22,30,000/-. An ex parte preliminary decree was passed on 26.02.2009.
On coming to know this, the petitioners filed I.A.No.2519 of 2009 under
Order I
Rule 10 C.P.C. with a prayer to implead them as defendants in the suit,
I.A.No.2518 of 2009 under Order IX Rule 13 CPC with a prayer to set aside the ex parte preliminary decree, dated 26.02.2009 and I.A.No.3920 of 2009 under
Order I
Rule 10 CPC with a prayer to implead them as respondents in the final decree proceedings.
They pleaded that the so-called mortgage said to have been created by the 2nd respondent in favour of the 1st respondent is a fictitious one and that the same is evident from the fact that the 2nd respondent did not make a mention of it, when the compromise decree was passed in O.S.No.1161 of 1996 on
30.07.1999.
Other grounds were also urged. The applications were resisted by
the 1st respondent.
Through common order, dated 17-08-2011, the trial Court dismissed the
applications. Hence, the two revisions and an appeal.
Sri J.V.Suryanarayana, learned counsel for the petitioners submits that the 2nd
respondent has been troubling the 1st petitioner and the rest of the family on
one pretext or the other for the past several decades and even after receiving
substantial amount of Rs.23,00,000/- under the compromise decree in O.S.No.1161
of 1996, he created a fictitious mortgage in collusion with the 1st respondent.
He contends that the very fact that the 2nd respondent remained ex parte, even
after receiving the summons discloses that he was determined to cause troubles
to the petitioners, who are in possession and enjoyment of the property.
Sri Kishore Rai, learned counsel for the 1st respondent, on the other hand,
submits that the trial Court was satisfied with the existence of mortgage and
genuinity thereof and a preliminary decree was passed in the suit.
He contends
that the sole basis for the right claimed by the petitioners is the compromise
decree, dated 30.07.1999 in O.S.No.1161 of 1996 and since the decree was not registered as provided under Section 17(f) of the Registration Act, it cannot be acted upon. He submits that the trial Court has taken correct view of the
matter.
The relationship between the parties is already mentioned. The record discloses
that the terms between the petitioners on one hand and the 2nd respondent on the
other hand, were not cordial.
Under the compromise decree, dated 30.07.1999 in
O.S.No.1161 of 1996, the petitioners paid Rs.23,00,000/- to the 2nd respondent,
as consideration for the latter to relinquish his right against the property.
Prima facie, this Court finds that in case, there existed a mortgage, dated
17.07.1996 in favour of the 1st respondent vis--vis the property, the 2nd
respondent would have revealed it to the petitioners, when the compromise decree
was passed on 30.07.1999.
Notwithstanding the fact that the decree was not
registered, the petitioners cannot be said to be strangers to the present
dispute.
On the other hand, the decree in O.S.No.1161 of 1996 can be treated as
the basis to recognize the right of the persons in possession of the property.
They cannot be relegated to a position, worse than that of the petitioners in an
application filed under Rule 58 of Order XXI C.P.C.
Further the 2nd respondent
has remained ex parte, obviously because he did not have anything to loose.
The
question as to whether the mortgage pleaded by the 1st respondent is true, legal
and binding on the petitioners needs to be decided on merits.
Though the trial Court has undertaken extensive discussion on merits, we are of
the view that this is not the stage to express any final opinion on the rights
of the parties.
The application filed under Order I Rule 10 C.P.C. need not
depend upon the existence of absolute rights. It would be sufficient, if the
parties have some interest in the property, which is the subject matter of the
suit. The petitioners can certainly fall back not only upon the decree in
O.S.No.1161 of 1996 but also on the relationship in the family.
The contention
of the respondents that third parties cannot be impleaded in a suit, after a
preliminary decree is passed, cannot be countenanced.
The reason is that in any
suit, in which a final decree is contemplated, it is deemed to be pending till
such final decree is passed.
Therefore, the petitioners deserve to be impleaded
in the suit as defendants and as respondents in the final decree proceedings.
We refrain from expressing any view as to whether a case is made out for setting
aside the ex parte decree.
We leave that question to be dealt with by the trial
Court, the reason being that the issue was not addressed by the trial Court,
once it has taken the view that the petitioners are not entitled to be impleaded
as parties.
Hence, C.R.P.No.3785 of 2011 is allowed and the order passed in I.A.No.2519 of 2011 is set aside.
As a result, the said I.A. is allowed and the petitioners
herein are added as defendants 2 to 5 to the suit.
C.R.P.No.3786 of 2011 is allowed and the order in I.A.No.3920 of 2009 is set aside.
As a result, the said I.A. is allowed and the petitioners herein are
impleaded as respondents 2 to 5 in I.A.No.2304 of 2009, filed for final decree.
C.M.A.No.937 of 2011 is allowed and the order passed by the trial Court in I.A.No.2518 of 2009 is set aside.
The matter is remanded to the trial Court, for
disposal on merits.
The miscellaneous petitions filed in these revisions and appeal shall also stand
disposed of. There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J.
_______________________
K.G.SHANKAR, J.
Dt:20.03.2013
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