Musti Rama Seshagiri Rao vs State Bank of India

Maithili Sharan, J.—This is one of the Judgment Debtors revision petition against the impugned order dated 6-7-1993 passed in E.P.No.7 of 1991 in O.S.No.25 of 1982 by the Court of the I Additional District Judge, Rajahmundry.

The brief relevant facts leading to this revision petition may be summarised thus: The respondent viz. State Bank of India, Rajahmundry filed a suit O.S.No.25 of 1982 against the defendants 1 to 5 for the recovery of money on the basis of a mortgage executed by the latter in favour of the former. A preliminary decree was passed on 12-8-1985 in favour of the respondent. Thereafter, the respondent applied for passing of the final decree. Obviously, the 6th defendant i.e. petitioner was added in the case because he had bona fide purchased some of the items of the mortgaged property, namely, item Nos. 4(a) to 4(d) of ''C schedule property by registered sale deed for valuable consideration. He raised this point during the final decree proceedings and it was accepted by the trial Court. The trial Court while allowing I.A.No.148 of 1987i.e. final decree petition filed by the respondent-plaintiff by order dated 10-7-1990 in para 13 observed as follows:

"13. This petition, therefore, is allowed, granting final decree in terms of the preliminary decree, in favour of the petitioner for the failure on the part of the respondents 2 to 5 in redeeming the mortgage. While executing the decree, the decree-holder shall first being the properties other than sub item Nos. 4(a) to (d) of ''C schedule, and shall bring sub-item Nos. 4(a) to (d) of C schedule properties to sale only, if all other items do not satisfy the decree of the decree-holder (petitioner). This petition, accordingly, is allowed with costs."

2-A. Thus, in the final decree, factually it was held that while executing the decree, the decree-holder would bring the properties other than sub-items (4) (a) to 4(d) of ''C schedule properties, and shall bring these items to sale only if all other items did not satisfy the decree of the decree-holder. Thereafter, the decree-holder (respondent herein) filed E.P.No.7 of 1991 and in the execution proceedings, a receiver was appointed for taking possession of the properties belonging to the Judgment Debtors 1 to 5, including of course the properties sold to the petitioner, for selling the same one by one. Here in the execution proceedings also, the petitioner filed E.A.No.14 of 1992 praying that the properties purchased by him for valuable consideration should not be ordered to sale at the first instance, and they could be sold afterwards, if the decree is not satisfied by selling the other items belonging to Judgment Debtors 1 to 5. The Executing Court allowed this Execution Application and modified its previous order to the effect that the receiver would execute the warrant in respect of final decree passed by the Sub-Court as mentioned in para 13 of the said order. In compliance of the order of the executing Court, the receiver sold certain machinery and other properties, but the decretal amount could not be satisfied. Thereafter on 6-7-1993, the impugned order was passed by the executing Court in the main Execution Petition No. 7 of 1991 wherein under para 6 it was specifically held that there was no clause or condition in the final decree that items 4(a) to 4(d) of the decree schedule property were to be sold only after exhausting the decree-holder''s remedies in bringing the other properties to sale. All the objections raised by the Judgment Debtors were overruled by the impugned order. Aggrieved by this order, the petitioner (purchaser) of the items 4(a) to 4(d) of the decree schedule property) has filed this revision petition.

I have heard the learned counsel on both sides and have carefully gone through the record of the case.

The short point involved in this petition is, whether by the impugned order, the petitioner should be taken to be aggrieved at this juncture or not, or he will be considered aggrieved only if the receiver appointed by the executing Court, before selling the other properties of the Judgment Debtors 1 to 5, proposes to sell the alleged properties purchased by the petitioner ?

Looking to para 6 of the impugned order, it is crystal clear that the executing Court had not cared to look into the order passed in the final decree petition which pointedly goes to indicate that the decree-holder shall first bring the properties other than sub-items 4(a) to 4(d) of ''C schedule, and shall bring these items to sale only if all other items did not satisfy the decree of the decree- holder. Surprisingly enough, the executing Court held that there was no clause or condition in the final decree in this regard. Besides, it also ignored the order passed by it on H.A.No.14 of 1992 in E.P .No.7 of 1991. Obviously enough, if the impugned order remains as it is and it is not challenged, the receiver would have no other go except to abide by this order of the executing Court, as the previous order passed by the executing Court in E.A.No.14 of 1992 would be taken to have merged in the order passed in the main execution petition. If the receiver goes against the impugned order passed in the Execution Petition, I am of the view, he might be hauled up for contempt of Court. Thus, evidently enough, the only remedy for the petitioner was to challenge this impugned order by way of a revision u/s 115 C.P.C. Since the executing Court by the impugned order has obviously gone behind the final decree passed by it, I am of the view, that it has exercised jurisdiction not vested in it by law. Thus, it cannot remain to stand.

In view of the above discussion, this Petition is allowed and the impugned order passed by the executing Court is set aside. No costs.