Khaja Safiullah vs Mettu Baga Reddy - 2006 Supreme(AP) 1066

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(AP) 1066

2006(3) L.S. 287
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr. Justice
V.V.S. Rao
Khaja Safiullah ..Petitioner
Vs.
Mettu Baga Reddy &
Ors., ..Respondents
C.R.P.No.3271/06 Date:15-9-2006
Mr.V. Venkataramana, Advocate for the Petitioner.
Mr.S. Malla Rao, Advocate for the Respondent Nos.1 to 33.

Headnote:CIVIL PROCEDURE CODE, Secs.151. r/w 2(2), 94 & 95 and Or.41, R.5 - RoR Act - Respondents/plaintiffs filed suit for decree declaring offending judgment as null and void challenging said judgment on ground that same obtained by 4th defendant in collusion with 5th defendant in respect of suit schedule property to which plaintiffs’ ancestors are protected tenants and perfected their title by adverse possession - Trial Court suspending offending judgment.
        Defendants contend that impugned order of trial Court is without jurisdiction and that power to stay judgment either under Or.41, R.5 or u/Sec.151 CPC can be exercised only when a decree is executable and if decree is not executable, same cannot be suspended nor stayed - Respondents/plaintiffs further contend that when they are not made parties and when they are directly adversely affected by such ex parte collusive decree, they had no other go except to file suit to declare offending judgment as null and void.

        “Decree” is defined as a formal expression of an adjudication conclusively determining rights of parties with regard to matters in controversy in suit - Appellate Court can even stay operation of decree for declaration because while defining ‘decree’ CPC does not make any difference between a declaratory decree or non-declaratory decree.
        Court may issue order to prevent ends of justice from being defeated - If Sec.94 is read with Sec.151 of CPC, which saves inherent power of Court to make order for ends of justice or to prevent abuse of process of Court, there cannot be any doubt that civil Court can make any order, which appears to be just and convenient - Power of Court to exercise its inherent powers or supplemental powers u/Sec.94 does not depend on question whether a decree is executable or inexecutable.
        When declaratory decree obtained by 4th defendant and approaches revenue/recording authority under RoR Act for issue of pattadar pass book, those persons who are legitimately true owners of land would certainly be affected adversely - In such situation, question is not whether decree is executable or not - In exercise of powers u/Sec.151 CPC, appellate Court is empowered to stay not only trial of independent suit, but also proceedings in execution of a decree in independent suit and Court also has power to stay execution of decree in appropriate cases.
        In this case, after obtaining ex parte decree, petitioner/4th defendant filed application before MRO for getting favourable mutation and record of rights - If declaratory decree is itself basis for proceeding before recording authority under RoR Act, if same is not suspended it can certainly lead to other complications - Order of suspending offending judgment and decree by trial Court - Justified - CRP, dismissed.

O R D E R

The fourth defendant in O.S.No.195 of 2005 on the file of the Court of the II Additional District Judge, Ranga Reddy, filed the present Civil Revision Petition under Article 227 of Constitution of India. He is aggrieved by the order, dated 03.06.2006, in I.A.No.1329 of 2005 in the said suit passed by the lower Court. By impugned order, the learned trial Judge suspended the Judgment and Decree in O.S.No. 1331 of 2004 on the file of the Court of the Principal Junior Civil Judge (East and North), Ranga Reddy District (hereafter called, the offending Judgment).

2. The respondents 1 to 33 herein (hereafter called, the plaintiffs) filed the suit for a decree declaring the offending Judgment as null and void and for perpetual injunction restraining defendants 4 and 5 from interfering with their possession. The offending Judgment was challenged inter alia on the ground that the same was obtained by the fourth defendant in collusion with the fifth defendant in respect of the suit schedule property. They alleged that their ancestors were protected tenants of the suit schedule property, in respect of which, Certificates under Sections 35, 37 and 38E of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (the Act, for brevity) were obtained. The fourth defendant, however, filed O.S.No.1331 of 2004 against fifth defendant without disclosing all this based on an agreement allegedly executed by the fifth defendant and obtained ex parte decree for declaration of title. The plaintiffs came to know about this from a paper publication in Eenadu, dated 25.05.2005. They alleged that defendant in O.S.No.1331 of 2004, Nawab Mir Amjad Ali, had no right, title or possession and that they perfected their title by adverse

possession.

3. Along with the suit, they filed two interlocutory applications. I.A.No.1329 of 2005 was filed under Section 151 of Code of Civil Procedure, 1908 (CPC) to suspend the -offending Judgment and I.A.No.1330 of 2005 was filed under Order XXXIX Rules 1 and 2, of CPC for grant of temporary injunction. The fourth defendant opposed the applications. He alleged that his father purchased the land admeasuring Acs.52.14 guntas from Nawab Mir Amjad Ali under unregistered sale deed, dated 12.03.1964, that when he did not execute sale deed pursuant to the unregistered document, he filed O.S.No.1331 of 2004 and obtained a decree for declaration and that the plaintiffs had no prima facie case. In support of the application for suspension of the offending Judgment, the plaintiffs alleged that after obtaining offending Judgment, the fourth defendant tried to approach revenue authorities for mutation in the revenue records by taking advantage of the offending Judgment and if the same is allowed, it would cause hardship to plaintiffs. The fourth defendant also opposed the application raising similar grounds, which are raised in opposition to the application for ad interim injunction.

4. The trial Court considered both applications separately. By order, dated 03.06.2006, the trial Court granted ad interim injunction in I.A.No.1330 of 2005. Aggrieved by the same, the fourth defendant filed Civil Miscellaneous Appeal in C.M.A.No.618 of 2006 before this Court. The same was allowed on 17.08.2006 and the matter was remanded to the lower Court for fresh enquiry. Be that as it is, by separate order in I.A.No.1329 of 2005, dated 03.06.2006, the trial Court came to the conclusion that if the offending Judgment is not suspended, it would cause hardship to the plaintiffs and would lead to multifarious litigations. Accordingly, the offending Judgment was suspended.

5. Learned Counsel for fourth defendant/petitioner submits that the impugned order of the trial Court suspending the offending Judgment is without jurisdiction. The power to stay the Judgment either under Order XLI Rule 5 or under Section 151 of CPC, can be exercised only when a decree is executable. If the decree is not executable, the same cannot be suspended nor stayed. S

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