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2020 Supreme(AP) 166
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
M. VENKATA RAMANA, J.
Jallipalli Srujana Devi – Appellant
Versus
Kandula Naga Rani – Respondent
Second Appeal No. 607 of 2012, Civil Revision Petition Nos. 824, 2053 of 2019
Decided On : 22-01-2020
Advocate Appeared:
Srinivas, K.B. Ramanna Dora, M. Sasank Reddy.
Point of Law: Rule enjoins that all persons interested either in the mortgage security or in the equity of redemption are to be joined as parties to any suit on the mortgage. The object of doing so is not merely to avoid multiplicity of suits, but also to enable the, interested parties to raise necessary defences open to them in law, so that the same may be taken into consideration in dealing with the claim under the mortgage and in passing the preliminary decree thereon. That this is imperative is also inferable from the fact that Order XXXIV, R.4, C.P.C. provides for the passing of a preliminary decree fixing a time for payment into court of the amount for which the preliminary decree had been made, and in default whereof giving of a right to the plaintiff therein, to apply for a final decree directing that the mortgage property or sufficient part thereof be sold and the proceeds of sale paid into Court and applied in payment of what has been found due under the preliminary decree
Headnote:
Civil law – Decree of Court – Execution proceedings –CRP directed against the order in the same execution petition assailing issuance of fresh warrant of delivery of E.P. schedule property - C.R.P. No. 824 of 2019 is directed against the order of the Court of learned Additional Senior Civil Judge, Eluru in E.P. No. 89 of 2008 in O.S. No. 150 of 2000, dated 15.03.2019, on the ground that the Executing Court is proceeding with the disposal of the execution petition in spite of pendency of S.A. - Whether the mortgage debt contracted by the second respondent in favour of the first respondent was for legal necessity of the appellant and the respondents 3 to 7 or it is an Avyavaharika debt, which is not binding on the family – Held, Executing Court in its order observed that a petition of this nature could not have been filed by the appellant invoking Order XXI Rule 97 CPC. The Executing Court seemed to have lost sight of its order in same E.A. No. 471 of 2008 dated 19.11.2009 rejecting the preliminary objection raised on behalf of the first respondent as to maintainability of a petition of this nature, directing enquiry in the matter. Even otherwise, when the appellant has asserted her independent right and title having 1/5 share in E.P. schedule property as a third party, she has right to object delivery of possession in terms of Order XXI Rule 97 CPC - Attempt of the appellant in this respect, has to be rejected and deposit of the amount by virtue of interim orders passed in the appeal cannot clothe her with any right, as contemplated by Order 34 Rule 5 CPC - Second appeal has to be dismissed. Consequently, both the CRPs shall also be dismissed
Facts of the Case:
Second respondent was Judgment-debtor (J. Dr.) in E.P. No. 89 of 2008 in O.S. No. 150 of 2000. The first respondent laid O.S. No. 150 of 2000 on the foot of a mortgage deed, dated 26.09.1999 for recovery of money against the second respondent. She is none other than the sister of the second respondent. A preliminary decree was passed in the suit on 19.06.2003 in favour of the first respondent and against the second respondent. The first respondent filed an application to pass final decree in terms of the preliminary decree against second respondent and a final decree was passed accordingly, on 27.01.2005.
Finding of the Court:
Executing Court in its order observed that a petition of this nature could not have been filed by the appellant invoking Order XXI Rule 97 CPC. The Executing Court seemed to have lost sight of its order in same E.A. No. 471 of 2008 dated 19.11.2009 rejecting the preliminary objection raised on behalf of the first respondent as to maintainability of a petition of this nature, directing enquiry in the matter. Even otherwise, when the appellant has asserted her independent right and title having 1/5 share in E.P. schedule property as a third party, she has right to object delivery of possession in terms of Order XXI Rule 97 CPC - Attempt of the appellant in this respect, has to be rejected and deposit of the amount by virtue of interim orders passed in the appeal cannot clothe her with any right, as contemplated by Order 34 Rule 5 CPC
Result: Second appeal has to be dismissed. Consequently, both the CRPs shall also be dismissed.
JUDGMENT :
M. VENKATA RAMANA, J.
1. This second appeal is directed against the decree and judgment in A.S. No. 126 of 2010 on the file of the Court of learned V Additional District Judge (FTC) West Godavari, at Eluru, dated 02.04.2012. It was an appeal preferred against the order in E.A. No. 471 of 2008 in E.P. No. 89 of 2008 in O.S. No. 150 of 2000 on the file of the Court of learned Additional Senior Civil Judge, Eluru, dated 19.04.2010.
2. C.R.P. No. 824 of 2019 is directed against the order of the Court of learned Additional Senior Civil Judge, Eluru in E.P. No. 89 of 2008 in O.S. No. 150 of 2000, dated 15.03.2019, on the ground that the Executing Court is proceeding with the disposal of the execution petition in spite of pendency of S.A. No. 607 of 2012.
3. C.R.P. No. 2053 of 2019 is directed against the order in the same execution petition dated 11.07.2019 of the same Court assailing issuance of fresh warrant of delivery of E.P. schedule property.
4. All the parties are closely related.
5. The second respondent was Judgment-debtor (J. Dr.) in E.P. No. 89 of 2008 in O.S. No. 150 of 2000. The first respondent laid O.S. No. 150 of 2000 on the foot of a mortgage deed, dated 26.09.1999 for recovery of money against the second respondent. She is none other than the sister of the second respondent. A preliminary decree was passed in the suit on 19.06.2003 in favour of the first respondent and against the second respondent. The first respondent filed an application to pass final decree in terms of the preliminary decree against second respondent and a final decree was passed accordingly, on 27.01.2005.
6. In execution of these decrees, the first respondent levied E.P. No. 111 of 2005 against the second respondent for sale of the security offered under the mortgage, viz. the E.P. schedule property. The description of the E.P. schedule property is as under:-
| “West Godavari District, Chintalapudi Sub-Division, Chintalapudi Mandal, Chintalapudi Village, Merakaveedhi in R.S. No. 913/1-A extent of Ac. 15.95 cts. out of that property sale is: | |
| Item No. 1 | |
| Extent 183 Sq. Yds with a Mangalore tiled house situated therein bearing D. No. 7-73 and Assessment No. 884 bounded by: | |
| East: Jallipalli Rajendra Prasad share site | 30' |
| South: Jallipalli Ramabhadra Rao | 53' |
| West: Joint Passage | |
| North: Kurisetti Nageswara Rao site 56' with service Connection No. 2406 | |
| Item No. 2 | |
| An extent of 4-6 Sq. Yds with a well situated therein bounded by: | |
| East: Compound of G. Rama Krishna Rao | 10' |
| South: Item No. 1 herein in | 4' |
| West: Kurisetti Nageswara Rao | 11' |
| North: Panchayat Road | 4' |
7. The above house was sold in public auction in E.P. No. 111 of 2005 on 29.03.2006. The first respondent as the Decree-holder (D. Hr.) with the permission of the Executing Court participated in the auction and became the highest bidder. Therefore, this house was knocked down in her favour. The sale was also confirmed by the Executing Court on 26.09.2007. E.P. No. 111 of 2005 was closed by the Executing Court on 18.01.2008 upon issuance of a sale certificate pursuant to confirmation of sale in favour of the first respondent.
8. The first respondent also levied E.P. No. 89 of 2008, on the strength of the sale certificate so issued, for delivery of possession of the above property under Order XXI Rule 95 CPC.
9. The second respondent died on 18.03.2008. Thereafter, the appellant and respondents 3 to 7 were brought on record as his legal representatives.
10. The appellant is the third daughter of the second respondent. The third respondent is the mother, fourth respondent is the wife and respondents 5 to 7 apart from the appellant are the daughters of the deceased second respondent and the fourth respondent.
11. At this stage, when the Amin of the Court went to the E.P. schedule house, to effect delivery of the same t
