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2017 Supreme(AP) 440
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. RAJASHEKER REDDY, J.
Addepalli Bhaskar Rao - Petitioner
Versus
Karmanchi Anil Kumar and another - Respondents
C.R.P. No. 4865 of 2007
Decided On : 19-09-2017
For the Petitioner: Sri N. Bhaskar Rao
For the Respondent: Sri V. Satyanarayana Prasad
Headnote:
Civil Procedure Code, 1908 - Section 47 and Section 151 - Civil Revision Petition – Eviction Suit - 1st respondent filed E.A claiming to be the tenant of the EP schedule property along with some other property and doing business in the said scheduled shop. Originally, the EP Schedule property belongs to one Kurravari family. The father of the JDR-2nd respondent herein i.e., Uppala Kasiviswanadham, Chanduluri Satyanarayana and Nagasuri Somaiah jointly purchased the EP Schedule property under two sale deeds, as such, the JDR has got only 1/3rd share in the EP schedule property and that the sale of entire EP schedule property is not valid under law – Held, While dealing with the question whether an application filed by decree holder under Section 151 CPC for removing the obstruction to delivery of possession of land claimed by decree-holder held to be treated as an application under Order 21 Rule 97 and the Court has followed the procedure laid down by Order 21 Rule 98 to 100, the Honble Supreme Court in S. Rajeswari v. S.N. Kulasekaran and others (supra) held that only appeal lies against the order passed under Order 21 Rule 97 treating the order passed in the application under Section 151 CPC as one under Order 21 rule 97 since factual aspects raised in the application under Section 151 of CPC attracted the provisions of Order 21 Rule 97. The Court below in that case also followed the procedure under Order 21 Rule 97 and held that the said order is appealable under Order 21 Rule 103 of CPC. But the facts in the present case on hand are otherwise. Having participated in the auction and having kept quite at that time, the 1st respondent/third party cannot question the auction sale of EP schedule property by way of an application under Section 47 r/w Section 151 CPC. Moreover, when Section 47 of CPC has no application and it is deemed that the Court passed orders under Section 151 CPC, which is not appealable, the Court below by of allowing the application, has terminated the entire EP, which is erroneous - Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it – Impugned order of the Court below is set aside - Civil Revision Petition is allowed
This Civil Revision Petition is filed against order dated 23.08.2007 in EA No.47 of 2005 in E.P.No.133 of 2003 in O.S.No.35 of 2002, wherein the Court below has allowed the application filed by the 1st respondent herein under Section 47 and Section 151 of CPC by setting aside the sale held on 29.11.2004.
2. Brief facts which are necessary for disposal of this Civil Revision Petition are that the 1st respondent filed E.A.No.47 of 2005 claiming to be the tenant of the EP schedule property along with some other property and doing business in the said scheduled shop. Originally, the EP Schedule property belongs to one Kurravari family. The father of the JDR-2nd respondent herein i.e., Uppala Kasiviswanadham, Chanduluri Satyanarayana and Nagasuri Somaiah jointly purchased the EP Schedule property under two sale deeds dated 09.02.978 and 25.11.1978, as such, the JDR has got only 1/3rd share in the EP schedule property and that the sale of entire EP schedule property is not valid under law.
3. The Decree Holder-petitioner herein filed counter denying the allegations in the petition and contended that the sale held is in accordance with the law and procedure and that the 1st respondent herein is not the tenant or owner of the property. That the 1st respondent also participated in the open auction held by the Court below on 29.11.2004 and the Court Amin has read over the contents of sale notification, but the 1st respondent has not raised any objection, as such, he is estopped from raising such pleas. That the provision of law quoted by the 1st respondent is not correct and that the sale of EP schedule property in the open auction by the Court is after following due process of law.
4. P.Ws.1 and 2 were examined on behalf of the 1st respondent and Exs.A1 to A6 were got marked. On behalf of the petitioner herein, R.Ws.1 and 2 were examined and Exs.B1 to B6 were got marked.
5. The Court below passed impugned order in the Revision Petition holding that the 2nd respondent-JDR has got saleable interest in respect of 1/3rd share of the EP schedule property only but not for the entire EP schedule property and sale of entire schedule property in respect of entire EP schedule property was set aside.
6. Learned counsel for the revision petitioner submits that the Court below erroneously allowed the application filed by the 1st respondent under Section 47 read with Section 151 of CPC, as Section 47 of CPC has no application since the 1st respondent is not a party to the suit. He submits that when once the 1st respondent participated in the open auction conducted by the Court, and the Court Amin has read over the contents of the sale notification, he is estopped from raising all such pleas regarding saleable interest of JDR-2nd respondent. He submits that the application filed by the 1st respondent before the Court below is not maintainable. He submits that the saleable interest of the JDR can only be questioned by the auction purchaser under Order 21 Rule 98 but nobody else. He submits that the Court below erroneously allowed the application holding that the JDR has no saleable interest in respect of entire EP Schedule property. He submits that the application under Order 21 Rule 99 can be maintained only on certain grounds and that the 1st respondent has not made out any such grounds. In support of his contentions, he relied on the judgments reported in P. Narayana Pillai v. Kunju Kunju Gopalan AIR 1967 Kerala 145 and Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by Lrs (2000) 3 SCC 87.
7. On the other hand, learned counsel for the 1st respondent submits that the application filed by the 1st respondent under Section 47 r/w Section 151 CPC can be treated as one under Order 21 Rule 97 of CPC, since the case of the 1st respondent falls under the said provision. He submits that the Court below after considering the oral and documentary evidence adduced on either side, passed judgment and decree, as such, this Revision Petition does not lie before thi
