T. Nabi Saheb vs V.P. Sivaiah and Others

M. Narayana Reddy, J.—This judgment, according to Law, arises out of a Civil Miscellaneous Appeal, filed by the sole appellant, against R-1 to R-5, under Sub-rule (4) of Rule 58 of Order XXI, CPC, questioning the, validity and legality, of the adjudications made by, and set forth in Para 2, infra.

Orders, dated 22-4-2002, of the Court of the Principal Senior Civil Judge, Ananthapur (Executing Court), made in E.A. No. 449 of 1999 in EP No.41 of 1994 in OS No. 286 of 1999, of its file, and the Decree of even date, that followed the same, therein.

Perused the material papers of the Record.

Heard arguments of the learned Counsel for both the parties.

At the very outset, I am of the opinion, that, the brief material required, for facts and circumstances of the case, and, the brief background, thereof, insofar as the same are factually and legally germane, for the purposes of the present judgment, should be set forth, as under, for deciding the merits or demerits, and the maintainability, or otherwise, of the foregoing impugned Orders, as well as, the Civil Miscellaneous Appeal etc.

The sole appellant in this Civil Miscellaneous Appeal is a third party, and, correspond to the sole petitioner, being, the claim-petitioner in EA No. 449 of 1999, in EP No. 41 of 1994 in OS No. 286 of 1991, of the file of the said Executing Court. R-1 to R-4 in the said EA No. 449 of 1999, and, correspond, respectively to, D.Hrs., 1 to 4 in EP No. 41 of 1994, of the said Executing Court, and Plaintiffs 1 to 4 in that OS No. 286 of 1991, of the file of the Court of Additional Senior Civil Judge, Ananthapur (Trial Court). R-5 herein correspond to R-5 in the said EA.449 of 1999 and the J.Dr., in that E.P., and (he sole defendant in that suit

The parties are, hereinafter referred to as claim petitioners, the D.Hrs., and the J.Dr., as the case may be, unless, so specified.

The subject-matter of the said EA No. 449 of 1999, of the said Executing Court, as well as, the present Civil Miscellaneous Appeal, and, the reliefs claimed in respect whereof, and as described in the Schedule of the said EA, as well as, the said EP, is reproduced, hereunder: House situated in RD and SRD of Ananthapur within Municipal limits bearing Old Ward No. 12, New Ward No. 12 and present Ward 19, Block No. 1, Town Survey No. 1928, Paiki house bearing 18/ 169 B (correct Door Number) and bounded by :

East - Raju''s House, South - Railway Feeder Road,

West - House of Venkatamma, North - House of Rokhiya,

Measuring : South-North : 75''

East West: 18''

The D.Hrs. filed the said OS No. 286 of 1991, against the sole defendant, in the said Trial Court, for recovery of a sum of Rs. 1,50,000/-, with interest thereon, and for costs of the suit etc., etc.

At the time of filing of the suit, the D.Hrs. filed IA No. 730 of 1991, under Rule 5 of Order XXXVIII CPC, and obtained attachment before judgment, of the said Scheduled Property referred to in para 8 (supra), on 10-12-1991.

Subsequently, after due trial thereof, the said OS No. 286 of 1991, transformed into a judgment and Decree, both, dated 22-6-1994, directing the sole J.Dr., to pay to the D.Hrs., the suit amount of Rs. 1,50,000/-, with interest thereon, at 12% per annum, etc., and costs of the suit.

Subsequently, in execution of the foregoing Decree, the D.Hrs. filed against the J.Dr., the said EP No. 41 of 1994, for recovery of the decretal amount, by way of sale of the suit Scheduled Property.

At that stage, the present claim petitioner filed the said E.A. No. 449 of 1999, against the D.Hrs., and the J.Dr., under Rule 58 of Order XXI, CPC, requesting the Executing Court, to raise the foregoing attachment before judgment effected over it, on 10-12-1999.

The case of the claim petitioner, in the said EA No. 449 of 1999, is that, earlier, on 15-6-1990, the J.Dr., executed in his favour, an agreement of sale, agreeing to sell to him, the said Scheduled Property, and simultaneously therewith, delivered to him, the possession thereof, and that, however, because, subsequently, the J.Dr., failed to execute a regular Deed of sale, in his favour, in pursuance of that agreement, he (claim petitioner), filed against the J.Dr., earlier, OS. No. 56 of 1992, for specific performance of that agreement, which, ultimately, was decreed in his favour, on 30-4-1992, and, subsequently, in process of execution, thereof, by him (claim petitioner), against the J.Dr., in E.P. No. 119 of 1992, the Executing Court executed in favour of the claim petitioner, a Sale Deed, dated 7-8-1993, in pursuance of that Decree for specific performance, and that, therefore, since the date of the sale agreement, up to date, the claim petitioner has been in possession and enjoyment of the Scheduled Property, but, that, however, knowing the same, full well, the D.Hrs., with mala fide intention, got attached the same before judgment, on 10-12-1991, even though, as on that date, the J.Dr. had no subsisting right, and that, therefore, the attachment before judgment, got effected by the D.Hrs., in OS. No. 286 of 1991, in IA No. 730 of 1991, on 10-12-1991, has to be raised, etc., etc.

In the said EA No. 449 of 1991, the D.Hrs., 1 to 4, filed a common counter, inter alia, urging that the alleged agreement of sale, dated 15-6-1990, alleged to have been executed by the J.Dr., in favour of the claim petitioner, and sought to be relied upon by the claim petitioner, is a collusive one, between both of them, because, both of them are related to each other, the claim petitioner being father-in-law of the J.Dr., and that, hence, the attachment before judgment got effected by the D.Hrs., in IA. No. 730 of 1991 in OS. No. 286 of 1991, on 10-12-1991, is valid and legal, and cannot be raised at all, as claimed by the claim petitioner etc., etc. Hence, the EA has to be dismissed with costs to the D.Hrs., etc., etc.

In EA No. 499 of 1999, the J.Dr., did not file any counter, and did not contest the same.

After framing points for enquiry, there into, the said Executing Court, enquired into the said EA No. 499 of 1999, in the. process whereof, it recorded the oral evidence of PW1 (claim petitioner), and PW2 and DW1 (D.Hr. No.1) and DW.2, and exhibited the documentary evidence, by way of Exs.A-1 and A-2, and Exs.B-1 to B-3, and, later, after due arguments thereinto, finally, adjudicated thereupon by its now impugned Orders, and the Decree, both dated 22-4-2002, set forth in Para 2, supra, as under:

(a) Refused to raise the attachment, as claimed therein;

(b) Consequently, dismissed the EA, in to;

(c) Directed the claim petitioner to pay exemplary costs of Rs. 1,000/- to D.Hrs to 1 to 4.

Aggrieved thereby, and, hence, questioning the validity and legality thereof, the claim petitioner filed the present Civil Miscellaneous Appeal, as set forth, in Para 1, supra read with Para 2, supra.

The learned Counsel for the claim petitioner relied upon the three Rulings, as under:

(I) K. Venkata Reddy Vs. Commissioner of Income Tax, A.P.II, Hyd. and another, delivered, inter alia interpreting the Provisions of Rules 5 and 7 of Order XXXVIII, CPC, read with Section 136, thereof, inter alia, postulating, that an agreement of sale creates an obligation attached to the ownership of the property, and since the attached creditor (D.Hr.) is entitled to attach only the right, title and interest of the J.Dr., the attachment, cannot be free from obligations incorporated under the contract.

(II) Vannarakkal Kallalathil Sreedharan Vs. Chandramaath Balakrishnan and Another, , delivered, inter alia, interpreting Rules 10 of Order XXXVIII, and Section 64, thereof, as also Sections 40 and 54 of the Transfer of Property Act, 1882, etc., and postulating that the contractual obligation created by the pre-attached agreement of sale is in respect of ownership of the land, while attachment before judgment is only of right, title and interest of the judgment Debtor.

(III) Judgment, dated 28-11-2003, of a Division Bench of the High Court of Andhra Pradesh, in WP Nos. 23436 and 23553 of 2003 (Talatam Srinivas v. The Registrar (Administration), High Court of A.P., Hyderabad), inter alia, observing that the District Judge cannot ignore a Ruling of the High Court, ipso facto, on the ground that, earlier, the High Court did not consider and give Rule etc., and that, even if it be so, the District Judge cannot ignore such a Ruling of the High Court, till such decision of the Division Bench is re-considered, or reviewed by the High Court, subsequently, etc. The learned Counsel for the claim petitioner sought to rely upon this Ruling, claiming, that, in this Ruling, it is postulated, the Subordinate Courts should observe judicial discipline, etc.

The facts and the details set forth in Paras 6 to 18, supra, are all admitted, or undiputed, and in any case, borne out by Record, in black and white.

In respect of the said Scheduled Property, there was an agreement of sale, dated 15-6-1990, executed by the J.Dr., who is the original owner of the said Scheduled Property, in favour of the claim petitioner. Subsequently, in EP No. 119 of 1992 in OS No. 56 of 1992, it transformed into regular and pucca Sale Deed executed by the Executing Court, in favour of the claim petitioner, on 7-8-1993. While so, in the meantime, on 10-12-1991 in IA No. 730 of 1991 in OS No. 286 of 1991, the D.Hrs., got the same property attached before judgment, as set forth in Para 10, supra.

When the facts, mentioned in the immediately preceding paragraph, are examined, in the light of the legal position, postulated by the Supreme Court, in two Rulings mentioned in 20 supra, then, in my opinion, it will factually and legally, ipso facto follows, that, the impugned attachment is bound to be raised, but, however, the Executing Court failed to do so, by the now impugned Orders, as set forth in Para 2, supra.

Even otherwise, the Record discloses, that, subsequent to the said attachment before judgment, on 10-12-1991, got effected in IA No. 730 of 1991, the D.Hrs., filed against the claim petitioner, and the J.Dr. OS. No. 27 of 1996, for cancellation of the Decree, dated 30-4-1992, obtained by the claim petitioner, against the J.Dr., in OS No. 56 of 1992, and also of the sale; that, the said sale, dated 7-8-1993, executed by the Executing Court, in favour of the claim petitioner in EP No.1 19 of 1992 in OS No. 56 of 1992, is void, and not valid, and hence, for declaration thereof as invalid etc.

So, therefore, when there is a suit filed by the D.Hrs., and the same in pending trial for the primary relief of cancellation of the Decree, in OS. No. 27 of 1996, and the Sale Deed executed therein etc., of such a sale deed, as void, and for it being set aside, then, it will be the competent Court, to decide, on the question, validly and legally. The D.Hrs. could have awaited the result, thereof.

In the foregoing facts and circumstances, I am of the opinion, that, the Executing Court in said EP No. 41 of 1994, and in the present EA No. 449 of 1999, could not and ought not to have probed into, and muchless, decided upon the validity and legality of either of the alleged agreement of sale, dated 15-6-1990, alleged to have been executed by the J.Dr. in favour of the claim petitioner, or the Decree, that followed in pursuance thereof, in the suit OS No. 56 of 1992 etc.

Even otherwise, I am of the opinion, that, the Executing Court, under Sub-rule (2) Rule 58 of Order XXI, CPC, cannot declare the validity and legality of a judgment and Decree, passed by a competent Court of Law, in the original suit proceedings. Much more, so, admittedly there is a separate suit filed for the same relief, as aforesaid.

Any observations made by the Executing Court in OS No. 286 of 1991, which is a money suit, in respect of the said sale agreement, cannot have the factual and legal effect of rendering the Decree, in OS. No. 56 of 1992, invalid, much less, the sale deed executed by that Court, in pursuance thereof, on 7-8-1993.

Even if, for a moment, the claim petitioner and the J.Dr. are related, respectively, as father-in-law and son-in-law, still notwithstanding that fact, by itself, will not ipso facto, render the said Sale Deed, dated 7-8-1993, in favour of the claim petitioner, executed by the Executing Court, invalid or inoperative. In that OS No. 56 of 1992, it is only the Court after finding, that, the agreement of sale dated 15-6-1990 executed by the J.Dr., in favour of the claim petitioner as valid, must have attached the same long back, on 30-4-1992, passed the Decree, for specific performance in favour of the claim petitioner, which ultimately in E.P. No.1 19 of 1992 transformed into a regular Court executed sale deed in his favour, on 7-8-1993.

To decide, whether the same is correct or wrong, has to be done, again, by a competent Court, of original Jurisdiction, in respect of which, admittedly, already the D.Hrs., filed the suit OS No. 27 of 1996, which is pending adjudication of by the Trial Court, on a future date, but not Executing Court, in that EA No. 449 of 1999.

Hence, I am of the opinion, that, the impugned Orders, and the Decree, are unsustainable at Fact and Law, and hence, are liable to be set aside, in to, and hence EA No. 449 of 1999, has to be allowed, as is being done hereunder.

However, the present adjduciation will be subject to the future result of the said OS No. 27 of 1996, filed by the D.Hrs., against the claim petitioner, and the J.Dr., for cancellation of the Decree, in EP No.1 19 of 1992 in OS No. 56 of 1992, and the consequent Sale Deed, dated 7-8-1993, executed by the Court, in favour of the claim petitioner etc.

Hence, the High Court doth hereby adjudicate upon the Civil Miscellaneous Appeal, as under:

(I) Set aside, in to, the impugned Orders and the Decree, both, dated 22-4-2002, made in EA. No. 449 of 1999, set forth in detail in Para 2 supra;

(II) Consequently, adjudicate upon the said EA. No. 449 of 1999, of the Court of Principal Senior Civil Judge, Ananthapur (Executing Court) as under:

(a) Raise the attachment effected over the plaint Scheduled Property, in pursuance of the Orders, dated, 10-12-1991, made in IA. No. 730 of 1991 in OS No. 286 of 1991, of its file;

(b) Direct the parties to the EA, to bear their respective costs, incurred herein;

(III) Direct the parties to the CMA to bear their respective costs, incurred herein.