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2023 Supreme(AP) 1579
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
K. Manmadha Rao, J.
B. Narasimha Rao and Others – Petitioners
Versus
G.S. Murthy and Others – Respondents
C.M.A. No. 21 of 2017
Decided On : 29-12-2023
Advocate Appeared:
For the Petitioners: A.S.C. Bose
For the Respondent: M.R.S. Srinivas
Auction of assigned property is void under the Assignment Act, 1977; however, failure to prove irregularity in auction leads to dismissal of claims.
Headnote:(A) Civil Procedure Code, 1908 - Order XXI, Rules 90 and 101 - Assignment Act, 1977 - Claim petition for declaring auction void - Appellants contended auction was invalid due to assigned property status, while court below dismissed their application for lack of evidence of irregularity - Court upheld lower court's decision, stating assigned property is heritable but not alienable. (Paras 2, 4, 10)
(B) Court's findings on execution proceedings - The court emphasized that the claim petition appeared to be an attempt to evade execution, referencing previous decisions on execution proceedings and court fees. (Paras 8, 10)
Facts of the case:
The appellants sought to declare an auction void, arguing the property was assigned and thus inalienable per the Assignment Act, 1977. The court found no evidence of auction irregularity.
Findings of Court:
The court dismissed the Civil Miscellaneous Appeal, allowing the appellants to seek redress through proper channels.
Issues: The main issue was whether the auction of assigned property was valid given its inalienable status.
Ratio Decidendi: The court ruled that the assigned property could not be sold in execution of a decree, affirming the lower court's dismissal due to lack of evidence.
Result: Civil Miscellaneous Appeal dismissed.
JUDGMENT :
K. Manmadha Rao, J.
1. The Appellants herein are the claim petitioners 3 to 5 before both the Court below filed the present Civil Miscellaneous Appeal before this Court, aggrieved by the order dated 27.10.2016 in E.A. No. 90 of 2010 in E.P. No. 271 of 1998 in O.S. No. 28 of 1993 on the file of the Court of the Principal Senior Civil Judge, Kakinada (in short ‘the court below’), which is filed under Order XXI, Rules 90 and 101 of C.P.C seeking to declare the petition schedule property as ‘assigned property’ and consequently declare the auction held by the court below on 13.12.2000 as void and to raise the attachment.
2. The court below after hearing on both the counsel, holding that the appellants have failed to substantiate their claim by adducing evidence that there was irregularity in conducting the auction, by the court. Their version is that the schedule property is assigned property, but Ex.B4 and B5 and other oral evidence, it is not at all assigned property and it is a private property and that the appellants are not entitled to any relief and accordingly dismissed the application. Assailing the same, the present C.M.A came to be filed.
3. Heard Mr. A.S.C. Bose, learned counsel for the appellants/claimants 3 to 5 and Mr. M.R.S. Srinivas, learned counsel for the 1st respondent/D.Hr.
4. During hearing learned counsel for the appellants would contend that the 1st respondent along with the court staff came to the property of the appellants and insisted them to vacate the property and then only the appellants came to know about the suit between the respondents. The assigned property is only heritable, but not alienable. Therefore any transaction between the respondents with regard to the assigned property is null and void. It is further contended that the 1st respondent played fraud in purchasing the property in the court auction, even though the property is assigned property and that the 1st respondent has no right to purchase the same, which the court below failed to look into. Even prior to the date of attachment there existed two story building in the schedule property. As per Section 3 of the Assignment Act, 1977, it prohibits the sale of assigned land in execution of a decree. The ground of in alienability of the assigned land can be raised at any time, since such sales are prohibited including sale and execution of the decree. Therefore the impugned order passed by the court below is liable to be set aside.
5. Whereas, learned counsel for the 1st respondent/D.Hr reiterated the contentions urged before the courts below and mainly contended that the court below has rightly discussed the issue in right perspective and dismissed the impugned application. Therefore the appellants are not entitled to claim any relief in this C.M.A.
6. Perused the record.
7. During the course of hearing, learned counsel for the respondents placed on record the decision of this Court in B. Nookaraju v. M.S.N. Charities and Others, AIR 1994 AP 334, wherein it was held as follows:
“12. No doubt, Order 21, Rule 58 (4) declared that the order made under sub-rule (3) “while have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree” Thus, the order is declared to be a ‘deemed decree’ and not a ‘decree’ by itself.”
8. Further he relied on a decision of this Court in Gurram Seetharam Reddy v. Gunti Yashoda, 2004 (6) Andh LD 175 (FB), wherein the learned Division Bench of this Court held as follows:
“12. To the same effect was Rule 103, in relation to delivery of possession. A party aggrieved by an order passed under Rule 63 or 103, had to file a suit to establish his claim. In its Fourteenth and Twenty Seventh Reports, the Law Commission identified this as a factor, giving rise to multiplicity of proceedings. With a view to remedy the situation, it pointed out that such claims be finally adjudicated in the same suit, instead of making it necessary for the parties to file separate suits. After taking in
