HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.5834 of 2011
09-03-2018
Rowthulapudi Primary Agricultural Cooperative Credit Society Petitioner
Kalla Sitaramam and 4 others .Respondents
Counsel for the petitioner :Smt. B. Vijaya Lakshmi
Counsel for the respondents : Sri KB. Ramanna Dora
<GIST:
>HEAD NOTE:
? Cases referred
1.2015 (4) ALD 693
2.2011 (3) ALD 626
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.5834 of 2011
ORDER:
The revision petitioner is the unsuccessful party in
E.A.No.89 of 2009 and CMA.No.36 of 2010 maintained the
revision against the concurrent dismissal orders and findings of
the learned Senior Civil Judge, Peddapuram (Executing Court)
vis--vis learned III Additional District Judge, Kakinada, East
Godavari District (first appellate Court). The revision petitioner is
a third party to the proceedings in O.S.No.21 of 2006 and
E.P.No.1 of 2008. The plaintiff in the suit was one K.Sitaramam
(decree holder/auction purchaser) and the defendants are
B.Lakshmi, B.Chakradharudu, B.Nookaraju and B.Sudheer (wife
and 3 children of late B.Appanna Babu).
The suit O.S.No.21 of 2006 was filed based on the foot of
pro-note said to have been executed by said Appanna Babu by
creating the property as collateral security for the pro-note debt
in maintaining suit and the suit O.S.No.21 of 2006 was decreed
by the Senior Civil Judge, Yalamanchili, and the decree was
transmitted for execution to the Senior Civil Judge, Peddapuram,
where the property lies. It is in the course of execution, the
decree holder on his application under Order 21 Rule 72 CPC was
permitted to bid and became the bidder of the property and the
auction held on 20.02.2009 and knocked the bid in his favour for
Rs.2,26,000/- and after adjustment of the decree amount he
deposited balance amount of Rs.48,916/- into Court and later for
grant of sale certificate for filing of Non-judicial stamp papers to
engross the sale in favour of auction purchaser/decree holder the
matter when posted, the petitioner/society states came to know of
it and approached the Sub Registrar, Tuni and obtained
encumbrance certificate and found that the said B.Appanna Babu
created mortgage over item No.1 of E.P. schedule property on
10.06.1998 itself in favour of society and the mortgage debt is in
subsistence that was not liquidated and suppressing the facts the
property brought to sale. Said claim petition in E.A.No.89 of
2009 contested by decree holder/auction purchaser and the
J.Drs. remained exparte and the counter of the decree
holder/auction purchaser was that the petitioner society and
J.Drs./respondent Nos.2 to 4 colluded in placing all the ended
transactions to cause inconvenience and hardship to the decree
holder/auction purchaser and it is a contested decree and based
on that in execution, property was attached and after obtaining
EC the property brought to sale and the decree holder became the
auction purchaser. The society kept all the time silent filed the
present petition at the belated stage without any just cause and
has no bonafides and the claim petition is liable to be dismissed.
It is therefrom by formulation of points for consideration in E.A.
as to the society is entitled to the declaration that the sale held in
E.P.No.1 of 2008 is illegal and irregular and to set aside. In
deciding the above point in the claim petition in the course of
enquiry on behalf of claim petitioner/society, the PW.1 one YSB
Dora was examined and placed reliance on Exs.P1 to P4 viz.,
registration copy of the mortgage deed executed by B.Appanna
Babu, Photostat account copy of mortgage loan transaction, EC
and certified copy of the order of attachment issued by Divisional
Cooperative Officer, Peddapuram. On behalf of the decree
holder/auction purchaser contesting respondent to the claim
petition he came to witness box as RW.1 and no documentary
evidence or further oral evidence adduced. From the above, the
learned SCJ dismissed the said claim petition E.A.No.89 of 2009
on 24.08.2010 with the observation that PW.1 in his cross
examination stated of no personal knowledge about the Ex.P1
mortgage transaction of the mortgage created by B.Appanna Babu
covered by Ex.P2 account copy of the loan amount due and no
person having personal acquaintance with the mortgage
transaction on behalf of the society and marking of Ex.P1
registration copy of the mortgage deed not established the
mortgage for PW.1 has no personal knowledge of the transaction
and said B.Appanna Babu worked as President of the society
during 1992-2005 according to PW.1 however no document filed
in this regard and there is no order to say the report of Deputy
Registrar of Cooperative society as Appanna Babu and Meera
Mohiddin were directed to pay Rs.7,10,186/- to the society in
respect of the alleged misappropriation of funds by said Appanna
Babu and there is no evidence produced to consider the same
thereby even Ex.P1 there is endorsement, the same was returned
to the President of the society for not in proper way even to call it
as proper mortgage deed and the property auctioned in E.P.No.1
of 2008 and the mortgage property not correlate to the claim and
PW.1 admitted about the loans as on 31.03.2007 was waived to
say a loan of Appanna Babu to take as waived. The claim
petitioner cannot claim of there is valid attachment of the EP
schedule property by the Deputy Registrar of Cooperative society
from said evidence of PW.1 with reference to Exs.P1 to P4
including certified copy of the order of attachment issued by
DCO. It is observed that RW.1, decree holder/auction purchaser
deposed in his evidence about the alleged debt of Appanna Babu
even if true as it is wiped out under Debt Relief Scheme, 2008, of
the alleged debt of agriculturist due by 31.03.2007 and the mere
pendency of departmental enquiry for the so called
misappropriation cannot be a ground to say the debt not wiped
out and the sale was proclaimed in Surya Telugu daily newspaper
and there are no grounds to set aside the sale under Order 21
Rule 90 CPC that too when the claim petitioner/society failed to
prove the so called mortgage debt over the EP schedule property.
Thereby held the claim is liable to be dismissed for nothing to set
aside the sale. The CMA.No.36 of 2010 filed by the society was
also ended in dismissal on 08.11.2010 with the observations that
evidence of PW.1 shows original defendant Appanna Babu
committed irregularities in society while dealing with affairs as
President and departmental enquiry conducted in directing to pay
Rs.7,10,186/- along with others and for its realization Ex.P4
attachment order passed and a perusal of Ex.P4 shows Deputy
Registrar, Peddapuram by order dated 23.03.2005 passed
directing Assistant Registrar of DCO Office, Peddapuram, to
conditionally attach the properties of Appanna Babu for recovery
of the misappropriated amount of Rs.3,89,660/- with interest of
Rs.4,65,173/- with subsequent interest at 18% per annum.
However there is no evidence to show said attachment was
affected, as PW.1 did not file any document of said attachment
was affected pursuant to Ex.P4 proceedings, including from his
say in cross examination of no document filed of attachment
affected thereby society failed to prove properties of the original
J.Dr. were under attachment of the society. Ex.P1 registration
extract of mortgage deed and Ex.P2-photostat account copy of the
mortgage loan transaction and the borrowal even not disputed by
filing counter by the J.Drs. or by the auction purchaser of the
E.P. as one of the respondents what is contended is debt has
been waived because of debt waiver scheme applies to the debts
outstanding by 31.03.2007. A perusal of Ex.P1 mortgage deed
shows it is only registration extract and the recitals at the fag end
shows registration authority returned the document for
compliance of objections and nothing to show objections complied
with and if so when and which date the document was registered,
though it is a compulsory registerable document and to be proved
by examining anybody connected with and none connected with
Ex.P1 were examined. Thereby evidence of PW.1 is of no avail
and also he deposed in his cross examination of he cannot say
whether there are recitals in Ex.P1 to the effect that mortgage
deed returned to the President of the society due to defects and
unless he see the records he cannot say details of mortgage
property including survey numbers and even he deposed about
Ex.P1 original is in the head office, no steps taken to get the
original marked, thereby failed to prove the said mortgage
transaction and PW.1s evidence shows mortgage debt has been
waived of what is originally borrowed of Rs.25,000/- though PW.1
stated of no waiver given to the loans in respect of which enquiry
is pending for misappropriation even according to him there is no
enquiry pending with regard to mortgage loan covered by Ex.P1,
leave apart original J.Dr. is an agriculturist and the loan was for
agricultural purpose availed to say it might have been waived and
for the foregoing discussions, the appellant-society failed to
substantiate the claim to seek set aside the sale. Thereby, CMA
ended in dismissal.
In the revision impugning the same the grounds urged are
that the concurrent findings of the court below are erroneous or
perverse and unsustainable and devoid of merits and it results in
failure of justice. The Courts below should have seen that Ex.P4
attachment proceedings dated 23.03.2005 issued by Deputy
Registrar of Cooperative Societies in exercise of power conferred
under Section 73 of the Act in issuing order of attachment and
Courts below should have seen that for the misappropriation of
funds and irregularities committed by said Appanna Babu while
dealing with the affairs of the society enquiry conducted and in
directing to pay Rs.7,10,186/- and for its realization Ex.P4
attachment was ordered and Courts below gravely erred in
holding debt contacted by said Appanna Babu is waived without
any evidence in support of it and should have seen that original
J.Drs. and the decree holder/auction purchaser colluded and
Exs.P1 to P3 establishes the subsistence of the mortgage debt of
the mortgage over the property entered on 10.06.1998.
Whereas it is the submission of the learned counsel for the
respondents to the revision, the auction purchaser of the
impugned orders of the Courts below with concurrent findings no
way requires interference while sitting in revision.
Learned counsel for the revision petitioner placed reliance
on the expression of this Court in NCV Subba Rao Vs. Gunda
Anka Rao , saying as can be seen from Order 21 Rule 90 CPC
sale of the property in execution of the decree can be set aside on
the ground of material irregularity or fraud in publishing or
conducting sale and the ground available for setting aside the
sale is material irregularity. Once that is not shown even full
description of property not given or market value shows lesser to
actual value cannot be a ground to set aside the sale when such
plea not taken on or before proclamation of sale drawn up. The
above decision has no application since the facts are entirely
different. In Mamillapalli Jyothish Kumar Vs. Deputy
Registrar, DCC Bank, Eluru it was held that any alienation after
statutory charge under Section 36 of the Act 1964 is void.
Heard both sides and perused the material on record.
Ex.P4 is the certified copy of the order of attachment issued
by the Divisional Cooperative Officer, Peddapuram. The only
thing to be seen therefrom with reference to evidence of PW.1 is
the attachment effected or not for the amount of Rs.7,46,186/-
which includes amounts misappropriated as Ex-President of the
society by late Appanna Babu that comes to Rs.7,10,186/-
covered by regular departmental enquiry by the Deputy Registrar
of Cooperative Societies in passing the surcharge proceedings in
Roc.No.594/03 dated 03.12.2005. The claim petition averments
clearly show the attachment was affected and PW.1s evidence
speaks he has no personal knowledge of the attachment is
effected or not. The counter filed by the auction
purchaser/decree holder of the suit O.S.No.21 of 2006 it is not
shown any specific denial of attachment affected nor in the
evidence as RW.1 he did not specifically say no attachment
effected, leave about of official acts are presumed to be duly
performed unless contrary is shown and at best if at all there is
any doubt, any of the Courts below should have been asked for
production regarding attachment is effected if not by the lower
Court remand the matter to the trial Court that too when there is
a huge amount of misappropriation and what is wiped out of the
agricultural debt of the mortgage for Rs.36,000/- and odd even
that mortgage deed was returned with defects before registration
and not even registered. Once for the agricultural loan that
mortgaged is covered, the Courts below should have been
considered whether the document is contemporaneous to the
debt or a subsequent acknowledgment of the past transaction by
the terms used therein. Once such is the case of any
acknowledgment of past transaction registration is not
compulsory as per the settled law rather than saying it is not
proved the question of proving arise for a registered mortgage for
compulsory registerable if there is a specific denial under Section
68 of the Evidence Act and not for a document nor a registered
mortgage and once that is the conclusion arrived by the Courts
below of not a complete registered mortgage then the question of
proving does not arise even the same is stated a registration
extract. Once such is the case, it is outcome of registration and
even it is not a registered one and the document not in dispute by
specific contentions in the cross examination, but for in saying no
persona knowledge for not a case of forged or fabricated or untrue
transaction, but for in saying the debt is deemed wiped out and
that when evidence of PW.1 shows for those persons where
departmental enquiry and irregularities pending they did not wipe
out the debt and once such is the case, the deemed wiping out
does not arise for the mortgage in subsistence and any sale by
attachment for recovery of any money decree then shall be
subject to mortgage debt that is not done in the case on hand,
leave apart even for the surcharge proceedings of the
misappropriation amount attachment proceedings issued, but for
not given clarification from lack of personal knowledge of PW.1.
Once the proceedings is to effect and deemed effected by drawing
presumption it is subject to that attachment any sale by Court
attachment shall follow and it was not down in the case on hand
and that too to say it is collusive one, the publication is in Surya
Telugu daily non circulated local newspaper and J.Drs. not even
contested being the LRs of Appanna Babu. It is the decree
holder/auction purchaser with permission of the Court knocked
the bid and it is not even an observation by Court in considering
what is the market value of the property with reference to Sub
Registrar value and Amin value and decree holder value and J.Dr.
value. As it is one of the primary duties of Court under Order 21
Rule 64 CPC only to sell the extent required and not the whole
property, leave apart the prior attachment if at all in subsistence
and prior mortgage of the society if at all in subsistence, the sale
in favour of the decree holder/auction purchaser of the suit debt
shall be subject to the above dismissal of the claim petition and
the dismissal of the appeal by the Court is unsustainable and
accordingly set aside.
Having regard to the above, the Civil Revision Petition is
allowed by setting aside the dismissal order confirmed in appeal
and by restoring the E.A.No.89 of 2009 by remanding to the
Executing Court for deciding afresh by affording further
opportunity to the claimant-society and the contesting
respondents viz., decree holder/auction purchaser and J.Drs. of
the execution proceedings of the decree in O.S.No.21 of 2006, to
decide the E.A.No.89 of 2009 on own merits afresh therefrom
preferably within six months from the date of receipt of this order.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 09.03.2018
CIVIL REVISION PETITION No.5834 of 2011
09-03-2018
Rowthulapudi Primary Agricultural Cooperative Credit Society Petitioner
Kalla Sitaramam and 4 others .Respondents
Counsel for the petitioner :Smt. B. Vijaya Lakshmi
Counsel for the respondents : Sri KB. Ramanna Dora
<GIST:
>HEAD NOTE:
? Cases referred
1.2015 (4) ALD 693
2.2011 (3) ALD 626
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
CIVIL REVISION PETITION No.5834 of 2011
ORDER:
The revision petitioner is the unsuccessful party in
E.A.No.89 of 2009 and CMA.No.36 of 2010 maintained the
revision against the concurrent dismissal orders and findings of
the learned Senior Civil Judge, Peddapuram (Executing Court)
vis--vis learned III Additional District Judge, Kakinada, East
Godavari District (first appellate Court). The revision petitioner is
a third party to the proceedings in O.S.No.21 of 2006 and
E.P.No.1 of 2008. The plaintiff in the suit was one K.Sitaramam
(decree holder/auction purchaser) and the defendants are
B.Lakshmi, B.Chakradharudu, B.Nookaraju and B.Sudheer (wife
and 3 children of late B.Appanna Babu).
The suit O.S.No.21 of 2006 was filed based on the foot of
pro-note said to have been executed by said Appanna Babu by
creating the property as collateral security for the pro-note debt
in maintaining suit and the suit O.S.No.21 of 2006 was decreed
by the Senior Civil Judge, Yalamanchili, and the decree was
transmitted for execution to the Senior Civil Judge, Peddapuram,
where the property lies. It is in the course of execution, the
decree holder on his application under Order 21 Rule 72 CPC was
permitted to bid and became the bidder of the property and the
auction held on 20.02.2009 and knocked the bid in his favour for
Rs.2,26,000/- and after adjustment of the decree amount he
deposited balance amount of Rs.48,916/- into Court and later for
grant of sale certificate for filing of Non-judicial stamp papers to
engross the sale in favour of auction purchaser/decree holder the
matter when posted, the petitioner/society states came to know of
it and approached the Sub Registrar, Tuni and obtained
encumbrance certificate and found that the said B.Appanna Babu
created mortgage over item No.1 of E.P. schedule property on
10.06.1998 itself in favour of society and the mortgage debt is in
subsistence that was not liquidated and suppressing the facts the
property brought to sale. Said claim petition in E.A.No.89 of
2009 contested by decree holder/auction purchaser and the
J.Drs. remained exparte and the counter of the decree
holder/auction purchaser was that the petitioner society and
J.Drs./respondent Nos.2 to 4 colluded in placing all the ended
transactions to cause inconvenience and hardship to the decree
holder/auction purchaser and it is a contested decree and based
on that in execution, property was attached and after obtaining
EC the property brought to sale and the decree holder became the
auction purchaser. The society kept all the time silent filed the
present petition at the belated stage without any just cause and
has no bonafides and the claim petition is liable to be dismissed.
It is therefrom by formulation of points for consideration in E.A.
as to the society is entitled to the declaration that the sale held in
E.P.No.1 of 2008 is illegal and irregular and to set aside. In
deciding the above point in the claim petition in the course of
enquiry on behalf of claim petitioner/society, the PW.1 one YSB
Dora was examined and placed reliance on Exs.P1 to P4 viz.,
registration copy of the mortgage deed executed by B.Appanna
Babu, Photostat account copy of mortgage loan transaction, EC
and certified copy of the order of attachment issued by Divisional
Cooperative Officer, Peddapuram. On behalf of the decree
holder/auction purchaser contesting respondent to the claim
petition he came to witness box as RW.1 and no documentary
evidence or further oral evidence adduced. From the above, the
learned SCJ dismissed the said claim petition E.A.No.89 of 2009
on 24.08.2010 with the observation that PW.1 in his cross
examination stated of no personal knowledge about the Ex.P1
mortgage transaction of the mortgage created by B.Appanna Babu
covered by Ex.P2 account copy of the loan amount due and no
person having personal acquaintance with the mortgage
transaction on behalf of the society and marking of Ex.P1
registration copy of the mortgage deed not established the
mortgage for PW.1 has no personal knowledge of the transaction
and said B.Appanna Babu worked as President of the society
during 1992-2005 according to PW.1 however no document filed
in this regard and there is no order to say the report of Deputy
Registrar of Cooperative society as Appanna Babu and Meera
Mohiddin were directed to pay Rs.7,10,186/- to the society in
respect of the alleged misappropriation of funds by said Appanna
Babu and there is no evidence produced to consider the same
thereby even Ex.P1 there is endorsement, the same was returned
to the President of the society for not in proper way even to call it
as proper mortgage deed and the property auctioned in E.P.No.1
of 2008 and the mortgage property not correlate to the claim and
PW.1 admitted about the loans as on 31.03.2007 was waived to
say a loan of Appanna Babu to take as waived. The claim
petitioner cannot claim of there is valid attachment of the EP
schedule property by the Deputy Registrar of Cooperative society
from said evidence of PW.1 with reference to Exs.P1 to P4
including certified copy of the order of attachment issued by
DCO. It is observed that RW.1, decree holder/auction purchaser
deposed in his evidence about the alleged debt of Appanna Babu
even if true as it is wiped out under Debt Relief Scheme, 2008, of
the alleged debt of agriculturist due by 31.03.2007 and the mere
pendency of departmental enquiry for the so called
misappropriation cannot be a ground to say the debt not wiped
out and the sale was proclaimed in Surya Telugu daily newspaper
and there are no grounds to set aside the sale under Order 21
Rule 90 CPC that too when the claim petitioner/society failed to
prove the so called mortgage debt over the EP schedule property.
Thereby held the claim is liable to be dismissed for nothing to set
aside the sale. The CMA.No.36 of 2010 filed by the society was
also ended in dismissal on 08.11.2010 with the observations that
evidence of PW.1 shows original defendant Appanna Babu
committed irregularities in society while dealing with affairs as
President and departmental enquiry conducted in directing to pay
Rs.7,10,186/- along with others and for its realization Ex.P4
attachment order passed and a perusal of Ex.P4 shows Deputy
Registrar, Peddapuram by order dated 23.03.2005 passed
directing Assistant Registrar of DCO Office, Peddapuram, to
conditionally attach the properties of Appanna Babu for recovery
of the misappropriated amount of Rs.3,89,660/- with interest of
Rs.4,65,173/- with subsequent interest at 18% per annum.
However there is no evidence to show said attachment was
affected, as PW.1 did not file any document of said attachment
was affected pursuant to Ex.P4 proceedings, including from his
say in cross examination of no document filed of attachment
affected thereby society failed to prove properties of the original
J.Dr. were under attachment of the society. Ex.P1 registration
extract of mortgage deed and Ex.P2-photostat account copy of the
mortgage loan transaction and the borrowal even not disputed by
filing counter by the J.Drs. or by the auction purchaser of the
E.P. as one of the respondents what is contended is debt has
been waived because of debt waiver scheme applies to the debts
outstanding by 31.03.2007. A perusal of Ex.P1 mortgage deed
shows it is only registration extract and the recitals at the fag end
shows registration authority returned the document for
compliance of objections and nothing to show objections complied
with and if so when and which date the document was registered,
though it is a compulsory registerable document and to be proved
by examining anybody connected with and none connected with
Ex.P1 were examined. Thereby evidence of PW.1 is of no avail
and also he deposed in his cross examination of he cannot say
whether there are recitals in Ex.P1 to the effect that mortgage
deed returned to the President of the society due to defects and
unless he see the records he cannot say details of mortgage
property including survey numbers and even he deposed about
Ex.P1 original is in the head office, no steps taken to get the
original marked, thereby failed to prove the said mortgage
transaction and PW.1s evidence shows mortgage debt has been
waived of what is originally borrowed of Rs.25,000/- though PW.1
stated of no waiver given to the loans in respect of which enquiry
is pending for misappropriation even according to him there is no
enquiry pending with regard to mortgage loan covered by Ex.P1,
leave apart original J.Dr. is an agriculturist and the loan was for
agricultural purpose availed to say it might have been waived and
for the foregoing discussions, the appellant-society failed to
substantiate the claim to seek set aside the sale. Thereby, CMA
ended in dismissal.
In the revision impugning the same the grounds urged are
that the concurrent findings of the court below are erroneous or
perverse and unsustainable and devoid of merits and it results in
failure of justice. The Courts below should have seen that Ex.P4
attachment proceedings dated 23.03.2005 issued by Deputy
Registrar of Cooperative Societies in exercise of power conferred
under Section 73 of the Act in issuing order of attachment and
Courts below should have seen that for the misappropriation of
funds and irregularities committed by said Appanna Babu while
dealing with the affairs of the society enquiry conducted and in
directing to pay Rs.7,10,186/- and for its realization Ex.P4
attachment was ordered and Courts below gravely erred in
holding debt contacted by said Appanna Babu is waived without
any evidence in support of it and should have seen that original
J.Drs. and the decree holder/auction purchaser colluded and
Exs.P1 to P3 establishes the subsistence of the mortgage debt of
the mortgage over the property entered on 10.06.1998.
Whereas it is the submission of the learned counsel for the
respondents to the revision, the auction purchaser of the
impugned orders of the Courts below with concurrent findings no
way requires interference while sitting in revision.
Learned counsel for the revision petitioner placed reliance
on the expression of this Court in NCV Subba Rao Vs. Gunda
Anka Rao , saying as can be seen from Order 21 Rule 90 CPC
sale of the property in execution of the decree can be set aside on
the ground of material irregularity or fraud in publishing or
conducting sale and the ground available for setting aside the
sale is material irregularity. Once that is not shown even full
description of property not given or market value shows lesser to
actual value cannot be a ground to set aside the sale when such
plea not taken on or before proclamation of sale drawn up. The
above decision has no application since the facts are entirely
different. In Mamillapalli Jyothish Kumar Vs. Deputy
Registrar, DCC Bank, Eluru it was held that any alienation after
statutory charge under Section 36 of the Act 1964 is void.
Heard both sides and perused the material on record.
Ex.P4 is the certified copy of the order of attachment issued
by the Divisional Cooperative Officer, Peddapuram. The only
thing to be seen therefrom with reference to evidence of PW.1 is
the attachment effected or not for the amount of Rs.7,46,186/-
which includes amounts misappropriated as Ex-President of the
society by late Appanna Babu that comes to Rs.7,10,186/-
covered by regular departmental enquiry by the Deputy Registrar
of Cooperative Societies in passing the surcharge proceedings in
Roc.No.594/03 dated 03.12.2005. The claim petition averments
clearly show the attachment was affected and PW.1s evidence
speaks he has no personal knowledge of the attachment is
effected or not. The counter filed by the auction
purchaser/decree holder of the suit O.S.No.21 of 2006 it is not
shown any specific denial of attachment affected nor in the
evidence as RW.1 he did not specifically say no attachment
effected, leave about of official acts are presumed to be duly
performed unless contrary is shown and at best if at all there is
any doubt, any of the Courts below should have been asked for
production regarding attachment is effected if not by the lower
Court remand the matter to the trial Court that too when there is
a huge amount of misappropriation and what is wiped out of the
agricultural debt of the mortgage for Rs.36,000/- and odd even
that mortgage deed was returned with defects before registration
and not even registered. Once for the agricultural loan that
mortgaged is covered, the Courts below should have been
considered whether the document is contemporaneous to the
debt or a subsequent acknowledgment of the past transaction by
the terms used therein. Once such is the case of any
acknowledgment of past transaction registration is not
compulsory as per the settled law rather than saying it is not
proved the question of proving arise for a registered mortgage for
compulsory registerable if there is a specific denial under Section
68 of the Evidence Act and not for a document nor a registered
mortgage and once that is the conclusion arrived by the Courts
below of not a complete registered mortgage then the question of
proving does not arise even the same is stated a registration
extract. Once such is the case, it is outcome of registration and
even it is not a registered one and the document not in dispute by
specific contentions in the cross examination, but for in saying no
persona knowledge for not a case of forged or fabricated or untrue
transaction, but for in saying the debt is deemed wiped out and
that when evidence of PW.1 shows for those persons where
departmental enquiry and irregularities pending they did not wipe
out the debt and once such is the case, the deemed wiping out
does not arise for the mortgage in subsistence and any sale by
attachment for recovery of any money decree then shall be
subject to mortgage debt that is not done in the case on hand,
leave apart even for the surcharge proceedings of the
misappropriation amount attachment proceedings issued, but for
not given clarification from lack of personal knowledge of PW.1.
Once the proceedings is to effect and deemed effected by drawing
presumption it is subject to that attachment any sale by Court
attachment shall follow and it was not down in the case on hand
and that too to say it is collusive one, the publication is in Surya
Telugu daily non circulated local newspaper and J.Drs. not even
contested being the LRs of Appanna Babu. It is the decree
holder/auction purchaser with permission of the Court knocked
the bid and it is not even an observation by Court in considering
what is the market value of the property with reference to Sub
Registrar value and Amin value and decree holder value and J.Dr.
value. As it is one of the primary duties of Court under Order 21
Rule 64 CPC only to sell the extent required and not the whole
property, leave apart the prior attachment if at all in subsistence
and prior mortgage of the society if at all in subsistence, the sale
in favour of the decree holder/auction purchaser of the suit debt
shall be subject to the above dismissal of the claim petition and
the dismissal of the appeal by the Court is unsustainable and
accordingly set aside.
Having regard to the above, the Civil Revision Petition is
allowed by setting aside the dismissal order confirmed in appeal
and by restoring the E.A.No.89 of 2009 by remanding to the
Executing Court for deciding afresh by affording further
opportunity to the claimant-society and the contesting
respondents viz., decree holder/auction purchaser and J.Drs. of
the execution proceedings of the decree in O.S.No.21 of 2006, to
decide the E.A.No.89 of 2009 on own merits afresh therefrom
preferably within six months from the date of receipt of this order.
Consequently, miscellaneous petitions, if any shall stand
closed. No costs.
_____________________________________
JUSTICE Dr. B.SIVA SANKARA RAO
Date: 09.03.2018
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