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Andhra Pradesh High Court
Judges : M.JAGANADHA RAO, P.KODANDA RAMAYYA
Magunta Mining Cp. - Appellant
Versus
M.Kondaramireddy - Respondent
Decided On : 12-03-82
CIVIL PROCEDURE CODE - ORDER 21 RULE 58 - CLAIM APPLICATION - LEASE OF SUBSOIL RIGHTS - CONSENT LETTER FROM OWNER - RIGHTS OF LESSEE - SALE OF SURFACE RIGHTS - RIGHTS OF COURT AUCTION-PURCHASER.
Fact of the Case:
The appellant, a mining company, filed a claim application under Order 21 Rule 58 of the Civil Procedure Code (CPC) to release the attachment of certain lands belonging to the judgment debtor in execution of a decree. The appellant claimed that it had obtained a mining lease from the Government for the said lands and that it was in possession of the same. The respondent-decree-holder contended that the appellant was not entitled to the release of the attachment as the judgment debtor was also a partner in the appellant firm and that the mining lease was not a real one.
Finding of the Court:
The court held that the appellant was entitled to the release of the attachment not only in respect of the subsoil rights granted by the Government but also in respect of the right to the exclusive possession of the surface of the lands so long as the subsoil lease lasted. The court further held that the Court auction-purchaser would not be entitled to interfere with the surface rights created in favor of the appellant in such a way as would interfere with or make it impossible for the appellant to exploit the mine pursuant to the lease of the subsoil rights granted by the Government.
Issues: 1. Whether the appellant was entitled to the release of the attachment of the lands in question? 2. Whether the Court auction-purchaser would be entitled to interfere with the surface rights created in favor of the appellant?
Ratio Decidendi: 1. The court held that the appellant was entitled to the release of the attachment as it had obtained a mining lease from the Government for the said lands and was in possession of the same. The court further held that the consent letter given by the judgment debtor to the appellant to enter upon the land and exploit the mineral was necessary for a profitable enjoyment of the subsoil rights. 2. The court held that the Court auction-purchaser would not be entitled to interfere with the surface rights created in favor of the appellant as the appellant was entitled to the exclusive possession of the surface of the lands so long as the subsoil lease lasted.
Final Decision: The appeal was allowed to the extent that the attachment of the lands in question was released in respect of the appellant's rights to the subsoil and surface of the lands. The court also declared that the Court auction-purchaser would not be entitled to interfere with the surface rights created in favor of the appellant.
( 1 ) THE appeal is directed against the order of the learned subordinate judge, Gudar in E. A. No. 107/ 80 in E. P. No. 2/79 in o. s. No. 64/67.
( 2 ) THE appellant filed an application in the Court below under O. 21 R. 58 C. P. C and the same having been rejected by the lower Court this appeal has been preferred under the amended provisions of the civil P. C. Which provided for an appeal instead of a suit.
( 3 ) THE first respondent in the appeal is the judgment-debtor while the 2nd respondent is the decree-holder. There was a compromise decree on 12-3-1968 for a sum of Rs. 1,00,000. 00 (one lakh) with interest thereon at 12% P. A. and subject to certain other terms and conditions the Judgment -debtor paid some amoutn towards the decree but on the date when the E. P. No. 2/79 was filed still a sum of Rs. 68,724. 89 was outstanding.
( 4 ) THE 2nd respondent-decree-holder filed E. P. No. 2/79 for realisation of the above sum and obtained an order of attachment of certain lands belonging to the judgment debtor in three villages. The attachment was effected on 15-3-1980 in one village and on 19-3-80 in two others villages of which utukuru is one. In this appeal we are concerned with certain items in Utukuru village with regard to which the appellant filed an application under O. 21 R. 58 C. P. C. on 25-4-1980 in E. A. No. 107/80 claiming to be interested in getting the attachment released in respect of four survey numbers in Utukuru village. As such we are not concerned with the attachment of the other lands in Uukuru or with regard to the other villages. The lands with regard to which the appellant filed the claim application are- 1. Patta No. 12 - survey No. 183 - Extent ac. 3-78 cents. 2. Patta No. 118 - survey No. 182 - Extent Ac 1-85 cents. 3. Patta No. 44 - survey No. 198/1 - Extent ac. 1-98 cents. 4. Patta No. 42- survey No. 198/2 Extent Ac. 0. 55 cents
( 5 ) IN the said application filed by the appellant under O. 21 R. 58 C. P. C. it was contended as follows; the applicant is a mining company represented by its Managing partner. He is no doubt the son of the Judgment-debtor. The application learnt that the 2nd respondent obtained a decree against the first respondent and in execution of the said decree brought the schedule mentioned four items to sale as if they belonged to the first respondent in the E. P. it is contended that the schedule properties are the Mica Mine plots covered by survery No. 182, 198/1, 198/2 and 183 of about ac. 8-11 cents They originally belonged to the judgment-debtor (1st respondent) and the land was fit only for mining work. Hence the judgment debtor gave his consent in 1977 for grant of a mining lease in favour of the appellant company and in accordance with the consent of the judgement-debtor the Assistant Director of Mines and Geology Nellore leased out the said lands to the appellant in his proceedings NO. 4763/ M-1/78 dated 28-2-1979 and since then the appellant alone has been in possession and enjoyment of the same as lessee under Government Memo No. 3160/ Mines II /78-2 dated 17-1-1979. As such and because of the lease. The Judgment debtor has no right or interest in the said properties and it is only the appellant that has been in possession of the same and therefore the attachment of these properties made on 15-3-1980 in the above E. P. is not valid and hence has to be vacated (obviously 15-3-1980 is a mistake for 19-3-1980.)
( 6 ) TO this application a counter was filed by the 2nd respondent-decree-holder as follows: the land is the patta land of the Judgment-debtor and they are living Jointly and doing mining business jointly. The judgment-debtor was previously doing mining in the schedule lands. As he failed to pay the dead rent and others dues to the Government the lease granted in favour of the judgment-debtor was cancelled. Subsequently the judgment-debtor instigated the claimant to apply for lease of the schedule land for doing mining work and he might have iss
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