Final Decree Proceedings- Quantum of Non-Judicial Stamp Collection- What is separated share

 Andhra High Court  Pothla vs Pothula Alias Gaddam Seshireddy ... on 21 March, 1975

Equivalent citations: AIR 1976 AP 45

Author: S Shanker, Bench: A Kuppuswami, S Shanker

JUDGMENT Shiv Shanker, J.

1. This matter comes up before us at the instance of the office to decide the quantum of non-judicial stamp deposited by the appellant-plaintiff.

2. The facts in brief are that the appellant-plaintiff on the demise of her husband in 1965 filed O.S.No. 5 of 1968 on the file of the Court of the Additional Subordinate Judge, Kurnool for partition and separate possession of her 7/36th share in the plaint schedule properties. The contesting defendants set up the plea that there was a partition of the joint family properties in 1962 during the lifetime of the plaintiff's husband and that her husband also adopted defendant No 6 on 22-8-1965 The learned Subordinate Judge, after trial, arrived at the finding that the partition as set up by the contesting joint family members was false and that defendant No. 6 was duly adopted by the plaintiff's husband. In this view, the plaintiff was held entitled to a 7/144th share in the plaint schedule properties and a preliminary decree was accordingly awarded. Aggrieved by the said decree, the plaintiff preferred A.S. No. 129 of 1971 to the court and during the pendency of the Appeal, the parties filed a memo of compromise with a partition to record it and pass a decree in terms thereof. The matter having come up before us on 4th November, 1974, we passed the decree in terms of the compromise. The question to be resolved is as to what is the value of the non-judicial stamp that has to be deposited by the appellant-plaintiff to engross the decree passed in her favour.

3. Under clause (1) of the compromise memo, the appellant-plaintiff has been allowed to enjoy the properties to the extent of 7/144th share as decreed by the Trial Court as an absolute owner. Under clause (3) of the memo, she has been given a house known as "Ramakrishniah Illu" bearing No. 4/11 of Tartur village as a limited owner; while under clause (2) thereof, she has been provided items 2 and 5 of the plaint schedule, the agricultural lands, absolutely as full owner. Clause (7) of the compromise memo treats the memo of compromise as a final decree. Despite this latest clause, the position that emerges is, that clause (1) of the compromise memo entitles the appellant-plaintiff to a 7/144th share which is in the nature of a mere declaration of her right as to share in the family  properties. No specific properties having been allotted to her under this clause, this portion of the compromise could not be treated as final decree.  Under clause (3) of the terms of the compromise, only a limited right has been assigned to the appellant-plaintiff in the house property and the value thereof could not be taken into consideration for the purposes of calculating the stamp duty on the partition deed. Items 2 and 5 of the plant schedule properties, according to clause (2) of the compromise, have been absolutely allotted to the appellant-plaintiff and the value of the said item is Rs. 9,000/-.

4. According to the office, total value of the plaint schedule properties being Rupees 1,96,500/- the  value of items 2 and 5 of the plaint schedule properties have to be deducted therefrom and the appellant-plaintiff should be called upon to pay a stamp duly of Rs. 5,625/- on Rs. 1,87,500/- the remaining value of the plaint schedule properties. This is disputed by Sri C. Sadasiva Reddy the learned counsel for the appellant-plaintiff. While being in agreement with the office that only items 2 and 5 of the plaint schedule properties valuing Rs. 9,000/- have to be reckoned for the purpose of final decree, he argues that the client's liability to pay the stamp duty is only on Rs. 9,000/- but not 

on the sum of Rs. 1,87,500/-.

5. Section 2 (15) of the Indian Stamp Act defines the instrument of partition as an instrument whereby the co-owners of any property divide or agree to divide such property in severally including a final order for effecting a partition passed by a Civil Court etc. Article 40 of Schedule 1 of the Act postulates the stamp duty of partition payable as Bottomry Bond for the amount of the value of the separate share or shares of the property. The note added thereto recites that the largest share remaining after the property is partitioned shall be deemed to be that from which the other shares are separated. Therefore, what follows from reading Article 40 is that it is on the value of the separated share or shares that the stamp has to be calculated and the largest share remaining shall be deemed to be that from which the other shares stand separated. Provisos (a) (b) and (c) of the Article are unnecessary for our present purposes, and therefore, they need no reference. Thus, the intention behind the Article is to tax the share or the shares divided off and not the residue, and the largest share is treated as residue, regardless of at whose instance the partition is made. It is based on this Act that Mr. Sadasiva Reddy contends that he could only be called upon to pay the stamp duty on the value of items 2 and 5 of the plaint Schedule properties. He calls in aid the Full Bench decision in Collector Vizagapatam v. Krishna Chandra, AIR 1928 Mad 1181 to buttress his argument. In this case, Article 45 of the Indian Stamp Act as amended by the State of Madras similar in terms to Article 40 applicable to our State fell for consideration in assessing the stamp duty. The property in that case was to be divided into four shares, one of the shares being twice each of the other three shares. The largest share after the partition therefore was the share which was double the value of the other shares. The entire value of the property having been assessed at Rs. 80,000/-, the largest share worked out to Rs. 32,000/-. On separating the other shares from this share, the party was called upon to pay the stamp duty on the separated shares aggregated at Rs.8,000/-. A similar view was also taken in the Bench decision of the same Court in Venkatappa v. Musal, AIR 934 Mad 204, where it was held that the smaller shares should be considered to have beeneparated from the larger share. Apart from the decisions referred to which are binding on us, on  the language of the Article itself we have no hesitation in finding ourselves one with the contention of the learned counsel for the appellant-plaintiff and in this view we overrule the objection of the office and direct that the value of the separated share alone has to be reckoned for the purposes of the stamp duty under Article 40 of the Stamp Act. Thus, in that case, the largest share remaining after the property is partitioned is that valuing Rs. 1,87,500/- while the share separated stands valued at Rs. 9,000/-. The Office would thus collect the non-judicial stamp duty only on this sum.

6. Order accordingly.

Negotiable Instruments Act, 1881, (“Act”) - Territorial Jurisdiction - If the cheque is delivered for collection through an account- Apex Court Judgment

 The Hon’ble Supreme Court of India in M/S Himalaya Self Farming Group Vs. M/S Goyal Feed Suppliers [Transfer Petition Criminal No. 273 of 2020] held that the court within whose jurisdiction the branch of the bank where payee maintains the account is situated, will have jurisdiction to try the offence under the Negotiable Instruments Act, 1881, (“Act”) if the cheque is delivered for collection through an account.

XXI Rule 58 Sub-Rule 1 CPC : No such claim or objection shall be entertained where, before the claim is preferred or objection is made, the property attached has already been sold.

 Andhra High Court

E.Aruna W/O.Kondala ... vs Vemala Sreenu S/O.Venkaiah, Aged ... on 17 July, 2015

        
 THE HONBLE SRI JUSTICE S.V. BHATT      

C.R.P. No.1291 OF 2015  

17-07-2015 


E.Aruna w/o.Kondala Rao,Occupation:House wife, R/o. Chamadala Village,  
Jaladanki Mandal, SPSR Nellore District..Petitioner

Vemala Sreenu s/o.Venkaiah, aged 41 years, r/o.Chamadala Village and Post,  
Jaladanki Mandal, S.P.S.R.Nellore District, and two others.  .Respondents

Counsel for Petitioner: Sri N.Vijay

Counsel for Respondent No.1: Sri A.V.V.S.N.Murthy 

<GIST: 

>HEAD NOTE:    

? Cases referred  1987 (1) ALT 583
  2002 (1) An.W.R.374 (A.P.)

2 2007 (1) ALD 106 
3  2003 (1) An.WR 401 (A.P.) 
4  AIR 2008 SC 2069 
5 AIR 1983 A.P. 335 

HONBLE SRI JUSTICE S.V.BHATT      

CIVIL REVISION PETITION No.1291 OF 2015     

ORDER:  

Auction purchaser in the pending proceedings in E.P.No.99 of 2009 in O.S.No.389 of 2006 in the Court of Principal Junior Civil Judge, Kavali, is the revision petitioner. The C.R.P. is directed against the order in E.A. No.252 of 2014 dated 19.12.2014.

The 1st respondent in the C.R.P. filed E.A.No.252 of 2014 in E.A. No.96 of 2013 under Order XXI Rule 59 of Civil Procedure Code (for short CPC) for stay or to stop the delivery proceedings pending in E.A. No.96 of 2013 in E.P.No.99 of 2009. The executing Court through docket order dated 19.12.2014 ordered thus:

To avoid the un-necessary complications in the interest of justice, the delivery proceedings in E.A.96/2013 in E.P.99/2009 in O.S.389/2006 is hereby stayed, call on 31.12.2014, meanwhile issue notice to Respondents 1 to 3.

The revision petitioner being aggrieved by the grant of stay of delivery of E.P. schedule property pending in E.A.No.96 of 2013 filed the present C.R.P.

The circumstances necessary for disposing of instant revision are as follows:

The 2nd respondent in the revision filed O.S.No.389 of 2006 in the Court of Principal Junior Civil Judge, Kavali to recover a sum of Rs.43,000/- and odd from 3rd respondent herein. On 05.09.2006, the trial Court ordered attachment before judgment of the following property:

Sri P.S.R.Nellore District Registration- Kavali Sub Registration- Jaladanki Mandal- Chamadala Village an extent of Ac.1.30 cents in S.No.522/8 and an extent of Ac.0.20 cents in S.No.522/9 in total Ac.1.50 cents of land out of Ac.1.53 cents within the following boundaries.

          EAST          :       Road 
    SOUTH    :       Land of Devalla Chenchaiah and others
          WEST          :       Vagu 
           NORTH                : Land of Pallapu Ankaiah as per the
                                                      instant E.P.schedule, as
per the petitioner Pallapu Anjaiah

O.S.No.389 of 2006 was decreed on 02.07.2009. The 2nd respondent is executing the Decree in E.P.No.99 of 2009 by putting to sale the attached property. On 06.11.2012, the property was sold and the revision petitioner purchased the E.P. Schedule in the auction conducted by the Court. On 31.01.2013, sale certificate was issued in favour of revision petitioner. On account of resistance, in one form or the other, for actual delivery of E.P. schedule property the E.P. is pending. The revision petitioner filed E.A.No.96 of 2013 for appropriate orders from the executing Court. While the matters stood thus, the 1st respondent filed E.A.Nos.251and 252 of 2014 under Order XXI Rules 58 and 59 CPC respectively. The case of 1st respondent is that on 07.06.2006, agreement of sale was entered into between the 1st and 3rd respondents in the revision petition and a regular sale deed was executed on 01.04.2011 between them. The 1st respondent is unaware or ignorant of either the attachment order dated 05.09.2006 in O.S. No.389 of 2006 or knows anything about the pending execution proceedings. The 1st respondent with the above contentions filed claim and stay petitions in E.A. Nos. 251 and 252 of 2014 as stated above.

Sri N.Vijay, learned counsel for the revision petitioner contends that the executing Court committed serious illegality by ordering stay of delivery under Order XXI Rule 59 CPC in E.A.No.252 of 2014. According to the learned counsel, the executing Court can certainly entertain an application filed under Rule 59 of Order XXI CPC provided the petition filed under Order XXI Rule 58 CPC in E.A.No.251 of 2014 is maintainable. The learned counsel relies upon the proviso to Order XXI Rule 58 CPC and submits that once the E.P. schedule property is not only sold, but sale certificate is issued in favour of revision petitioner herein, prohibition in law for entertaining the claim petition at the instance of any one much less the 1st respondent who claims to be a purchaser of suit schedule property when the attachment is in force is attracted.

The learned counsel places strong reliance upon the decisions reported in P.M.Doraswamy Reddy v. T.M.Gowri Sanker , M.Jayamma v. J.Nadamuni Reddy (died) per LRs , Gangineni Damodar Naidu v. Kurapati Kondaiah Naidu , Singirikonda Surekha v. G.V.Sharma and Kancherla Lakshminarayana v. Mattaparthi Shyamala .

The learned counsel while challenging the docket order dated 19.12.2014 contends that having regard to the facts and circumstances of the present case, the prayer in E.A.No.252 of 2014 is not maintainable and consequently no order under Rule 59 can be granted. In other words, the objection raised by the petitioner goes to the maintainability of applications in E.A.Nos.251 and 252 of 2014 and the jurisdiction of the Court to grant stay of delivery of sold property.

On the other hand, Sri A.V.V.S.N. Murthy submits that the 1st respondent on 07.06.2006 entered into agreement of sale with judgment debtor and a registered sale deed was executed by judgment debtor on 01.04.2011. The 1st respondent is not aware of the attachment order dated 05.09.2006, or sale of the property in E.P.No.99 of 2009. Alternatively he submits that as a regular sale deed is obtained by the 1st respondent, the 1st respondent is a person having interest in the E.P. schedule property and the claim petition under Rule 58 of Order XXI CPC is maintainable. The learned counsel when confronted with stark fact of auction held on 06.11.2012 and issue of sale certificate dated 31.01.2013 replies by placing reliance upon the decision in M/s Magunta Mining Co. v. M.Kondaramireddy that a claim petition even after sale is completed can be maintained in law and the instant applications are accordingly maintainable. The learned counsel alternatively submits that the executing Court can certainly consider the maintainability of E.A. Nos. 251 and 252 of 2014 and no ground is made out by the revision petitioner for interference at this stage in E.P.No.99 of 2009.

Perused the material available on record and noted the rival submissions of learned counsel appearing for the parties.

Now the point for consideration is whether the executing Court is competent to pass the order dated 19.12.2014 in E.A.No.252 of 2014?

At the outset, it is noted that C.R.P. is directed against the order dated 19.12.2014 in E.A.No.252 of 2014. Consideration of legality or otherwise of the prayer in E.A.No.252 of 2014 and/or the order dated 19.12.2014 is depending upon consideration of the primary objections raised by the revision petitioner under Order XXI Rule 58 CPC against the very maintainability of E.A. No.251 of 2014.

Order XXI Rule 58 Sub Rule (1) reads thus:

Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim, or objection in accordance with the provisions herein contained:

Provided that no such claim or objection shall be entertained-

(a) Where, before the claim is preferred or objection is made, the property attached has already been sold; or (emphasis added)

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

The above Rule provides for adjudication of claims or objections on attached property in E.P. The Rule enables maintaining a claim or objection to the attachment of a property in execution of a decree by contending that the property so attached is not liable for attachment or further proceedings against the property covered by attachment cannot be proceeded with in pending E.P. The claim is decided under Sub Rules 2 to 5 or Order XXI Rule 58. Proviso (a) to Order XXI Rule 58 Sub-Rule 1 CPC reads thus:

No such claim or objection shall be entertained where, before the claim is preferred or objection is made, the property attached has already been sold. (emphasis added).

In other words, by operation of proviso (a), the executing Court cannot entertain a claim petition if the execution proceedings have culminated in sale of attached property and a sale certificate is issued by the executing Court. The learned counsel appearing for the 1st respondent places reliance upon M/s Magunta Mining Cos case (6 supra) stating that a claim petition is maintainable even after the property is sold and issuance of sale certificate by the executing Court. The learned counsel relies upon the following paragraph in M/s.Magunta Mining Cos case (6 supra).

Whenever a claim is preferred under O.21, R.58 against attachment of immovable properties, the fact that the properties are sold or the sale confirmed will not deprive the Court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial Court of the appellate Court (under the Amended Code) and in the event of the claim being allowed, the sale and the confirmation of sale shall to that extent be treated as a nullity and of no effect.

M/s. Magunta Mining Co.s case (6 supra) was decided by a Division Bench of this Court. The ratio of M/s.Mangunta Minding Cos case has been the subject matter of the decisions in P.M.Doraswamy Reddy (1 supra) and Singirikonda Surekha (4 supra). I consider it appropriate to refer to the observations in these two decisions to ascertain the ratio laid in M/s.Magunta Mining Co s case (6 supra).

The distinguishing feature in M/s.Magunta Mining Cos case (6 supra) and P.M.Doraswamy Reddy (1 supra) and Singirikonda Surekha (4 supra) cases is that in M/s.Magunta Mining Cos case, the claim petition was filed before auction was held and during the pendency of the appeal filed against rejection of claim petition, the property was sold. The distinguishing fact situation of M/s. Magunta Mining Cos case (6 supra) is considered in P.M.Doraswamy Reddys case (1 supra) and Singirikonda Surekhas case (4 supra). Relevant Paras read as follows:

P.M.Doraswamy Reddys case (1 supra):

The Division Bench is concerned with a situation whether appeal is maintainable and in the context of considering this aspect two aspects namely the sale after interim order was passed and the stay of confirmation of sale were adverted to. Whatever be the effect of sale subsequent to grant of interim stay the stay of confirmation of sale is not a bar to the maintainability of appeal in view of second limb of clause (B) of Order 21 Rule 59 CPC. It is obvious that the conclusion is based upon this crucial aspect as evident from the categorical observation, But it is clear that so long as the sale is not confirmed the status quo ante can be restored in case the claim is allowed. After adverting to the legal position hereinbefore with reference to the facts in the case the Court adverted to the legal effect of allowing the claim petition and in the context of considering this aspect made general observations in para 15. For the purpose of considering the contention of maintainability of the petition founded upon the operation of proviso to Order 21 Rule 58 the impact of Order 21 Rule 59 has already been considered with reference to facts in the case and as such the general observations in Para 15 are not intended to cover the situation when the sale is held before filing the claim petition. It is obvious that these observations echoed the prevalent enunciation of legal position that the sale of the attached property is null in the event of allowing the claim petition and these observations are sought to be unduly stretched to the maintainability of claim petition, notwithstanding the anterior sale. It may be reiterated that the non-maintainability of the claim petition under proviso to Rule 58 can be impugned by recourse to remedy by way of suit under clause 5 of Rule 58 and this route of questing the maintainability of the claim petition is not concerned with the issue of adjudication of claim petition in event of sale before filing the petition. Therefore, the conclusion of the lower court that the application under Order 21 Rule 58 CPC is maintainable even when the sale is held before filing the claim petition is in teeth of proviso to Order 21 Rule 58 CPC and the decision referred to is not applicable to the situation in the instant case.

Singirikonda Surekhas case (4 supra) M/s.Magunta Mining Co.(1 supra), relied on by the learned counsel for the revision petitioner, has no application to the facts of this case. In that case claim petition, in respect of the properties attached in March,1980, was filed on 25.04.1980. After enquiry that petition was dismissed on merits. Appeal against that order of dismissal was filed in this Court on 18.05.1980 and interim stay was granted on 22.08.1980. But, even before the order of stay was communicated to it, the Executing Court held the auction. Therefore, a contention was raised during the course of hearing of the appeal that the appeal is liable to be dismissed inasmuch as the sale was already held. Therefore, one of the points for consideration framed was whether the appeal can be proceeded with even though the property was sold during the pendency of the appeal. Holding that the appeal can be heard on merits, the Bench held in para 15 of its judgment as under:

Whenever a claim is preferred under Order 21 Rule 58 C.P.C,. against attachment of immovable properties, the fact that the properties are sold or the sale confirmed will not deprive the Court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial Court or the appellate Court (under the amendment Code) and in the event of the claim being allowed, the sale and the confirmation of sale shall to that extent be treated as a nullity and of no effect, as the judgment-debtor had no title which could pay to the Court auction-purchaser.

Therefore, the ratio in that decision is that if sale was held during the pendency of the appeal against the order of dismissal of a petition filed under Rule 58 of Order 21 C.P.C., the appeal does not become infructuous. The Bench was not deciding the question as to whether a claim petition can be filed after the sale was held. So, the said decision has no application to the facts of this case.

In Kancherla Lakshminarayanas case (5 supra), the Apex Court considered the meaning of the word sold in proviso (a) to Sub Rule I of Rule 58 of Order XXI and held as follows:

Mere holding of auction sale does not bar the raising of objection to attachment of property. The word sold in Clause (a) of the proviso to Rule 58 has to be read meaning thereby a complete sale including the confirmation of the auction. In considering the time factor of challenging the sale, the locus standi factor on account of any prior interest of the objector in the suit property has also to be considered. The attachment cannot be free from the prior obligations. The necessary sequatur is that even after the facturm of sale the objection would still lie before the sale is made absolute.

This Court in the instant C.R.P. is concerned with proviso (a) to Sub Rule 1 of Rule 58 of Order XXI CPC and maintainability of claim petition after the property is sold and a sale certificate is issued. To complete the narration the consideration on this aspect, the following paragraph in Gangineni Damodar Naidus case (3 supra) is excerpted. Rule 58 of Order XXI directs that all claims, or objections to, attachment of any property, in execution of a decree, must be preferred before the Executing Court itself. This provision is mainly intended to deal with the claims, or objections of third parties. The reason is that, a judgment-debtor cannot object for proceeding against an item of property, if he has right and title in it, and he should not bother himself much, if he does not hold title, upon it. Apart from enabling third parties, to put forward their claims in the execution proceedings, Rule 58 prohibits filing of separate suits. However, the rule draws a dead line, in the matter of presentation of the claims. No claim can be entertained, after the attached property is brought to sale.

The facts and circumstances are not in dispute and the outcome of C.R.P. depends on maintainability of claim petition after the property is sold and a sale certificate is issued by the executing Court. The 1st respondent places strong reliance upon M/s.Magunta Mining Cos case (6 supra), as already noticed M/s.Magunta Mining Cos case is distinguished by P.M.Doraswamy Reddy (1 supra) and Singirikonda Surekha (4 supra) cases and the contention basing upon M/s.Magunta Mining Cos case (6 supra) has to be negatived and accordingly rejected. Now, I proceed to examine effect of proviso (a) to Order XXI Rule 58 (1)CPC.

From the scheme of Order XX1 Rule 58 CPC, it is clear that the Rule firstly provides for adjudication of claims at the instance of a third party and the remedies against adjudication to an aggrieved party. The proviso (a) to Sub- Rule 1 of Order XXI Rule 58 prohibits the executing Court from entertaining claim or objection against the property attached has already been sold. The purpose of imposing prohibition to entertain claim petitions in matters which have been processed up to the stage of issuance of sale certificate are easily discernable. In construing the scope of prohibition to entertain the claim petition under Order XXI Rule 58, sub-rule (1) can be examined by reference to other relevant provision viz., Rules 92 and 94 of Order XXI CPC and read thus:

Rule 92 of Order XXI:

Sale when to become absolute or be set aside.- (1) Where no application is made under Rule 89, Rule 90 or Rule 91, or where such application is made and disallowed, the Court shall make an Order confirming the sale, and thereupon the sale shall become absolute: Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within 1 [sixty days] from the date of sale, or in cases where the amount deposited under Rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby:

Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

(4) Where a third party challenges the judgment- debtors title by filing a suit against the auction- purchaser, the decree- holder and the judgment- debtor shall be necessary parties to the suit. (5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree- holder to refund the money to the auction- purchaser, and where such an Order is passed the execution proceeding in which the sale had been held shall, unless the Court otherwise directs, be revived at the stage at which the sale was ordered.

Rule 94 of Order XXI:

Certificate of purchaser:-Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

Proviso to Rule 92 sub-rule (1) of Order XXI CPC refers to a situation where the sale is held and a claim is made by a third party, the executing Court is directed not to confirm the sale till the disposal of such claim by the executing Court.

Sub-rules (4) and (5) deal with a situation where a third party is compelled to challenge by way of a suit, the judgment-debtors title to the property sold in execution proceedings and who are the necessary parties and what is the jurisdiction of Court to grant comprehensive reliefs in the suit filed by a third party.

Rule 94 enables issuance of sale certificate to the auction purchaser after completing various stages under different rules of execution. Therefore the procedure stipulated in the rules has forward march with the completion of a particular stage and not intended to reopen the Court concluded actions viz., sale certificate is issued. The important words to attract prohibition, in the proviso to Rule 58(1) CPC are that the property attached has already been sold. The words are simple and convey full meaning in the application of proviso to completed sale transactions. From literal construction of these words it can be held that once the sale certificate is issued to the property sold in auction held by the Court, the proviso to Rule 58(1) is attracted and no claim petition is maintainable against such property. From a conspectus of the above provisions, it can be held that Order XXI CPC is a stand alone provision comprehensively dealing with execution of decrees and orders. The various stages of the execution provides for objection by respondent/third party to execution and the executing Court decides these objections. With a decision at appropriate stage by the executing Court the next step is followed. Therefore, at the instance of a third party the completed stages are not revisited. Therefore, with the issuance of sale certificate the property is said to be sold by the executing Court and no claim petition under Order XXI Rule 58 CPC is maintainable.

The executing Court with the issuance of sale certificate completes the process of auction initiated under Order XXI and thereafter, a further stage in execution proceedings arises. It cannot be the intention of Parliament to go forwards and come backwards in deciding the execution proceedings with the filing of claim petition. Therefore, prohibition in complete terms is attracted to entertain a claim petition by the proviso when the property is sold by the executing Court. Therefore, in my considered opinion the prayer in E.A.No.251 of 2014 is not maintainable.

Having regard to the findings recorded on the maintainability of E.A.No.251 of 2014, I have to consider the legality of docket order dated 19.12.2014. The executing Court prima facie has committed an illegality in entertaining E.A.No.251 of 2014 and that E.A.No.96 of 2013 is pending for delivery of possession. The order impugned is erroneous and unsustainable. Once the claim petition is not maintainable in law, the question of granting stay of delivery of possession does not arise. Hence, the order impugned is set aside and C.R.P. allowed. The revision petitioner is given liberty to bring to the notice of executing Court the observations on the maintainability of E.A.No.251 of 2014 and obtain appropriate orders.

It is made clear that the E.As filed by the 1st respondent are considered from the limited perspective of maintainability and not on merits. The dismissal or rejection of E.A. Nos.251 of 2014 or 252 of 2014 shall not be treated as foreclosing the remedies, if any, available to the 1st respondent.

With the above observation, the C.R.P. is allowed. No order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

_____________ S.V.BHATT,J Date:17.07.2015

Upon the reconstruction of the record it would have the same effect as the originals themselves.A useful judgment on reconstruction of record.

Chinna Karuppathal

v.

A.D. Sundara Bai & Others

(High Court Of Judicature At Madras)

Civil Revision Petition No. 3078 Of 2009, & M.P. No. 1 Of 2009 | 16-11-2009

(Prayer: This Civil Revision Petition is filed under Section 115 of Civil Procedure Code, praying to set aside the order dated 28.07.2009 passed in E.A.No.255 of 2009 in E.A.No.139 of 1962 in E.P.No.134 of 1957 in O.S.No.226 of 1946 on the file of II Additional Subordinate Judge, Coimbatore.)

The revision petition/petitioner/second petitioner has projected this civil revision petition as against the order dated 28.07.2009 made in E.A.No.255 of 2009 in E.A.No.139 of 1962 in E.P.No.134 of 1957 in O.S.No.226 of 1946 passed by the II Additional Subordinate Judge, Coimbatore, in dismissing the application filed by the revision petitioner under Section 151 of Civil Procedure Code praying for an enquiry in E.A.No.139 of 1962 filed under Section 47 of Civil Procedure Code.

2. The Executing Court while passing orders in E.A.No.255/2009 has inter alia opined that, "... it is not necessary to take up enquiry in E.A.No.139 of 1962 as the Apex Court itself has considered the pendancy of E.A.No.139 of 1962 and passed a final order on merits and this has no power to take up the enquiry afresh in E.A.No.139 of 1962 that in view of the final order passed by the Honble Supreme Court of India, and I.A.Nos.19-21 of 2008 in Civil Application Nos.5267-5269 have been filed by the petitioners seeking clarifications setting out that E.A.No.139 of 1962 under Section 47 of Civil Procedure Code is pending before this Court and thereby sought for a direction given by Honble Supreme Court of India, not to confirm the sale and to issue sale certificate in favour of the auction purchasers set out in the order dated 24.10.2008 shall be deleted. However, the Honble Supreme Court of India, had dismissed the said clarification by an order dated 23.02.2009 etc., and since the highest Court of Law the Honble Supreme Court of India, has passed the final order, that the present Execution Application has no merits and resultantly, dismissed the application without costs."

3. The core of contention put forward by the learned counsel for the revision petitioner is that the order of the Executing Court, in dismissing the E.A.No.255 of 2009 is materially an irregular one and also contrary to law and the Executing Court, as a matter of fact has not appreciated of the simple fact that what was challenged before the Honble Supreme Court of India is against the order of the Honble High Court, Madras dated 26.02.1998 in C.R.P.Nos.3162 to 3164 of 1992 which have been filed against E.A.No.782 of 1989 in E.A.Nos.1612 and 1613 of 1987 respectively and not against the application filed under Section 47 of Civil Procedure Code, and the Honble Supreme Court of India has merely dismissed the application filed for clarification without any discussion or expressing any opinion on the application filed under Section 47 of Civil Procedure Code and further, that the order of the Honble Supreme Court of India dated 23.02.2009 is not on merits, and moreover, while considering the applicability of Tamil Nadu Agriculturist Debt Act and Section 23 A of the said Act, the Honble Supreme Court of India have held that the persons are not entitled for the benefit of Section 23 A of the Act and in short there has been no reference in the applicability of Section 47 of Civil Procedure Code in the order passed by the Honble Supreme Court and as such the Execution Court ought to have held the application under Section 47 of Civil Procedure Code is proper and maintainable in law and the trial Court has failed to see that earlier application under Section 47 of Civil Procedure Code have not been heard and it ought to have taken up the application E.a.No139 of 1962 filed under Section 47 of Civil Procedure Code and all the more the Executing Court has committed an error in holding that the order of the Honble Supreme Court is final on the whole aspect and since, the Executing Court has not appreciated and adverted to the factual aspects of the matter in issue the order passed by it in E.A.No.255 of 2009 suffers from material irregularity coupled with patent illegality which has resulted in the dismissal of the Execution Petition and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice.

4. In the counter filed by Mr. P. Kumarasamy who is the legal representative of 13th Respondent, Ponnusamy Gounder it is inter alia mentioned that the legal representatives of his father in E.A.Nos.1612 and 1613 of 1987 and E.A.No.782 of 1988 have already been impleaded and the same has been recognised in Civil Revision Petition No.3162 of 1992 on the file of this Court and Civil Appeal Nos.5267-69 of 2002 on the file of Honble Supreme Court of India and that his father Ponnusamy expired on 27.01.1973 leaving behind him, two brothers Velusamy and Jambulingam and two sisters Karunambigai and Rukmini, and further his brother Velusamy expired on 13.07.2005 leaving behind his wife Parvathy and children Vivekanandan and Geetha and likewise his sister Rukmini expired on 13.12.1996 leaving behind her husband Sivsamy Gounder and her children Chandrakala, Gnanaprakash, Jagadambal and Nathan (alias) Jaganathan and as a matter of fact all of us have been arrayed as Respondent Nos.9 to 21 in the proceedings pending before the Honble Supreme Court in C.A.No.5267 to 5269 of 2002, and though they have not arrayed as parties in this civil revision petition this counter affidavit has been filed as a caveator as legal representatives of the deceased 13th respondent and added further, the revision petitioner alone has moved E.A.No.255 of 2009 praying for an enquiry in E.A.No.139 of 1962 filed under Section 47 of Civil Procedure Code and though the legal representatives of 13th respondent herein have filed counter in the said E.A.No.255 of 2009 and in the order passed by the Executing Court in E.A.No.139 of 1962 the Executing Court has questioned the locus standi of the petitioner to project an application under Section 47 of Civil Procedure Code and the response of the revision petitioner has been that he is the representative in interest by means of a settlement deed and also that the settlement deed has been brought into existence during the pendency of the Execution proceedings and since the petitioner is not coming within the four parameters of Section 47 of Civil Procedure Code, he is not entitled to maintain the said application and also that the Honble Supreme Court has refused to consider the demand of petitioner to keep in abeyance the confirmation of sale till the disposal of the Section 47 application and therefore prays for dismissal of the civil revision petition.

5. The learned counsel for Respondents Nos.11 and 12, legal representatives submits before this Court that he adopts the contentions put forward by the learned counsel for the legal representatives of 13th respondent in all aspects and goes on to add that legal representatives of 12th respondent have been added before the Honble Supreme Court as necessary parties but the revision petitioner has not chosen to show them as one of the necessary parties before the present civil revision petition before this Court and contends that the Executing Court has considered over all assesment of the facts and circumstances of the case in a cumulative and in an integral fashion and has passed the recent order which may not be interfered by this Court sitting in revision.

6. This Court has heard the arguments of the learned counsel appearing for the parties and noticed their contentions. This Court, at this stage, pertinently recalls the judgment of the Honble Supreme Court in C.A.Nos.5267-5269 of 2002, between Chinnakarupathal & Ors. and A.D. Sundarabai (dead by Lrs) & Ors. dated 24.10.2008 whereby and whereunder the Honble Supreme Court has among other things held as follows;

"The fact that agricultural lands were sold in an auction and that the owners of such lands were agriculturists, are not by themselves sufficient to invoke the exercise of power under Section 23A of the Act. The Court can set aside a sale of immovable property under the said section only if the Court is satisfied that the applicant is a person entitled to the benefits of the Act.

As noticed above, the only benefit claimed by the appellants under the Act was scaling down of the debt and determination of the scaled down amount. We have already held that the said application was not maintainable. The appellants have not been able to demonstrate how they are entitled to any of the benefits under the said Act. A perusal of the Act shows that the reliefs that can be granted under the Act are: scaling down of debts and rates of interest; relief in regard to the usufructuary mortgages; consessions in regard to interest payable by agriculturists on loans; conditional discharge of arrears of rent due to land holders and scaling down of interest on arrears of rent. But none of these are applicable to the recovery by way of restitution, by enforcing the security. Scaling down of the debit is permissible only where the amount paid or payable by way of principal and interest is more than twice the amount of the principal. That does not apply in this case. This is not a case of usufructuary mortgage. Nor is any interest payable on any loan. Nor is the claim for any rent payable. Therefore, we are not satisfied that appellants, are persons entitled to the benefits of the Act. In the absence of such satisfaction, the question of setting aside the auction sale under Section 23A of the Act does not arise. The rejection of the three applications is proper. As a consequence, the auction sales will have to be confirmed in favour of the auction-purchasers."

7. Thereafter, a clarification petition has been filed by the revision petitioner before the Honble Supreme Court in I.A.Nos.19-21 in C.A.Nos.5267-5269 of 2002 and the same has been dismissed on 23.02.2009.

8. It is to be noted that an application filed by the third party under Section 47 of Civil Procedure Code is per se not maintainable as per decision of this Court Rajammal v. A.T. Krishnaswami Mudaliar (Died) and Others, AIR 1972 Madras 359 (V 59 C 121) wherein it is held that, even after the amendment to the Civil Procedure Code after Act 104 of 1976 and thereafter as per Act 22 of 2002 the position of law in regard to Section 47 of Civil Procedure Code remains the same and in short if now the application filed by the third party under Section 47 of Civil Procedure Code is not per se maintainable in law.

9. Even though a fervent endeavuor have been made on the part of the revision petitioner to project a case before this Court by put forwarding a plea that the Honble Supreme Court has been has been considering only the applicability of Tamil Nadu Agriculturist Debt Act and Section 23A of the said Act etc., this Court opines that the Honble Supreme Court of India has earlier disposed of the C.A.Nos.5267-5269 of 2002 and later clarification I.A.Nos.19-21 filed have also been dismissed on 23.02.2009, and therefore, the matter interse between the parties have become final besides being conclusive and the same is binding.

10. One cannot brush aside a very important fact that while dismissing the C.A.Nos.5267-5269 of 2002 on 24.10.2008 the Honble Supreme Court of India has inevitably held that; "... therefore, we are not satisfied that appellants, are persons entitled to the benefits of the Act. In the absence of such satisfaction, the question of setting aside the auction sale under Section 23A of the Act does not arise. The rejection of the three applications is proper. As a consequence, the auction sales will have to be confirmed in favour of the auction-purchasers and the appeals have no merits and are accordingly dismissed."

11. It is brought to the notice of this Court that the sale has been confirmed by the Executing Court on 28.07.2009. It is significant to make a mention that the Honble Supreme Court has not consider the demand of the Petitioner to keep in abeyance the confirmation of sale till the disposal of the Section 47 application.

12. Be that as it may in view of the fact that the sale has been confirmed by the Executing Court on 28.07.2009 and also taking note of another important fact that the C.A.No.5267 - 5269 of 2002 being dismissed by the Honble Supreme Court and also subsequently, the clarification petition I.A.Nos.19-21 have also been dismissed and since the original suit No.226 of 1946 relates to the year of 1946 this Court is reminded of the well known saying that, an Homo-Sapien is a Mortal but the litigation is an immortal one and in law the person who has succeeded is entitled to see the fruits of the decree/order, and coming to the facts of the present case on hand, and assessing the same in a conspectus fashion and looking at from any angle this Court comes to the inevitable conclusion that after the proceedings before the Honble Supreme Court of India have reached finality it is not open to the revision petitioner to give life to an application under Section 47 of the Civil Procedure Code filed by the revision petitioner praying this Court for issuance of direction to the trial Court to dispose of the Section 47 application namely E.A.No.255 of 2009 is only a futile and otiose one and viewed in this perspective this Court dismisses the civil revision petition without costs.

13. In fine, the civil revision petition is dismissed leaving the parties to bear their own costs. The order passed by the Executing Court in E.A.No.255 of 2009 is affirmed by this Court. Considering the facts and circumstances of the case there shall be no order as to costs. Before parting with the case it is brought to the notice of this Court by the learned counsel for the revision petitioner that Section 47 application in E.A.No.139 of 1962 is not available among the records in E.P.No.134 of 1957 in O.S.No.226 of 1946 on the file of Learned II Additional Sub Judge, Coimbatore. At this juncture it is not out of place for this Court (for the knowledge and guidance of the Subordinate Courts and Judicial Officers) to make a mention that in regard to the missing of Court records the Honourable High Court in R.O.C.No.412/1980/F1 dated 10.09.1989 has issued a circular to the Subordinate Judicial Officers stating that the High Court has come across instances where missing of the records not reported to the High Court by the concerned subordinate Courts promptly and that the High Court directs whenever there is any instance of missing of Court records, it should be reported immediately either to the Registrar, High Court, Madras or to the Special Officer, Vigilance Cell, High Court, Madras. At this stage this Court recalls the observation of the Full Bench decision of this Court in Marakkarutti v. T.P.M. Veeran Kutty AIR 1923 Mad. 247 (FB): (1923) 1 MLJ 673 that the reconstruction of the record may go to the extent of rehearing of the case itself which means directing the parties to produce the relevant witnesses and in doing so, the Court will have to ascertain not only what the rights of the parties were, but also what the destroyed record was. Also in Katam Achutharamayya v. Rikki Nagabhushanan ILR (1957) A.P. 739, the Andhra Pradesh High Court has been required to decide the desirability of reconstructing the record of which the original award had been lost for no fault of either party and that it is held that the Court could under the Courts inherent power direct for reconstruction and upon the reconstruction of the record it would have the same effect as the originals themselves. Therefore, it will be quite in the fitness of things that the Executing Court shall act in terms of tenor and spirit of High Court circular in R.O.C.No.412/1980/F1 dated 10.09.1989 and further under its inherent power it shall reconstruct the Section 47 application E.A.No.139 of 1962 and to pass appropriate orders in the manner known to law in the said application within a period of 10 days from the date of receipt of the copy of this order and to report compliance to this Court without fail. Consequently, M.P.1 of 2009 is closed.

Chinna Karuppathal v. A.D. Sundara Bai & Others