Non-consideration of germane arguments advanced by a party in an appellate judgment amounts to an error apparent on the face of the record, constituting a valid ground for review under Order 47 Rule 1 CPC.

JUDGMENT: (per Hon’ble Sri Justice Ravi Nath Tilhari)

Heard Sri M. R. K. Chakravarthy, learned counsel appearing for the review petitioner and Sri C. Subodh, learned counsel appearing for respondent Nos.1 to 4.

2. The review petitioner is the appellant in A.S.No.59 of 2020.

3. The appeal was filed challenging the Order and Decree dated

09.12.2019 in E.A.No.32 of 2017 in E.P.No.50 of 2013 in O.S.No.98 of 2010, passed by the learned I Additional District and Sessions Judge, Nellore. The E.A.No.32 of 2017 filed by the appellant under Order 21 Rule 58 of Code of Civil Procedure (in short ‘CPC’) was rejected by the Executing Court.

4. The appeal A.S.No.59 of 2020 was dismissed by a Coordinate Bench of this Court on 05.01.2022, against which the aforesaid review application has been filed.

I. Facts:

5. O.S.No.98 of 2010 was filed by the respondent Nos.1 to 4 against one Pallala Bujjamma and respondents 5 and 6 for realization of the suit amount by redemption of mortgage. Preliminary decree dated 13.11.2011 was passed and the final decree was passed on 05.08.2013. The defendant/judgment debtors failed to comply with the decree, so the plaintiffs/respondents 1 to 4/decree holders filed E.P.No.50 of 2013 to sell the suit schedule property and to realize the E.P. amount. In the said E.P, the review petitioner filed E.A.No.32 of 2017 under Order 21 Rule 58 read with Section 151 CPC.

6. The E.A was filed interaliaon the ground that the claim petitioner (review petitioner) is the daughter of late Arjunaiah @ Chenchaiah who died on 15.12.2000, and the first judgment debtor Bujjamma and the sister of the respondents 2 and 3 (i.e., the sister of present respondents 5 and 6). The first judgment debtor Bujjamma died during pendency of E.P.No.50 of 2013. During the lifetime, the father of the review petitioner, Pallala Arjunaiah @ Chenchaiah, had purchased certain landed properties including the E.P.schedule property and died intestate on 15.12.2000 leaving behind him his wife, the first judgment debtor and his daughters, the review petitioner and the 3^rd judgment debtor and his son 2^nd judgment debtor (present respondents 6 and 5 respectively). The case of the claim petitioner/review petitioner was that on the death of the father, by way of succession, the review petitioner and judgment debtors 1 to 3 became the absolute owners of the estate of the deceased. So, she had 1/4th share in the properties left by the deceased including the E.P. schedule property. She had filed O.S.No.199 of 2009 for partition, declaration and delivery of possession of her undivided share in the joint family properties. The E.P. schedule property was shown as item No.2 in the plaint schedule in O.S.No.199 of 2009, pending in the Court of the I Additional Senior Civil Judge, Nellore against the judgment debtors. The further case of the claim petitioner/review petitioner was that the judgment debtors 1 to 3 without her consent and knowledge, defeating her claim, mortgaged the E.P schedule property to the plaintiffs (decree holders). The judgment debtors had no right to mortgage the E.P schedule property nor the decree holders have right to sell the E.P. schedule property in public auction without dividing the share of the claim petitioner/review petitioner pending disposal of the suit for partition etc., (O.S.No.199 of 2009). It was her further case that O.S.No.199 of 2009 was decreed on 25.01.2018 by allotting the item Nos.2 and 3 of the said suit schedule to the claim petitioner and item No.1 was allotted to the share of the judgment debtors 1 to 3. Those defendants were directed to h