CMA/21/2017 of B NARASIMHA RAO, TUNI AND 2 OTHERS Vs G S MURTHY, KAKINADA AND 2 OTHERS on 29 December 2023

JUDGMENT:

The Appellants herein are the claim petitioners 3 to[5][ before]both the Court below filed the present Civil Miscellaneous Appealbeforethis Court,aggrieved by the order dated 27.10.2016inE.A.No.90 of 2010 in E.P.No.271 of 1998 in O.S.No. 28 of 1993 onthe file of the Court of the Principal Senior Civil Judge, Kakinada(in short ‘the court below’), which is filed under Order XXI, Rules90 and101of C.P.Cseekingtodeclarethepetitionschedulepropertyas‘assignedproperty’andconsequentlydeclaretheauction 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, holdingthattheappellantshavefailedtosubstantiatetheir claimbyadducing evidence that there was irregularity in conducting[the]auction, by the court. Their version is that the schedule property isassigned property, but Ex.B4 and B5 and other oral evidence, it isnot at all assigned property anditis a private property[and][ that]theappellantsarenotentitledtoanyreliefandaccordinglydismissed the application. Assailing the same, the present C.M.Acame 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 the1®‘ respondent/D.Hr.

4. During hearing learned counsel for the appellants[would]contend that the Dt respondent along with the court[staff][ came][ to]the property of the appellants andinsisted themtovacatetheproperty and then only the appellants came to know about the suitbetween the respondents. The assigned property is only heritable,butnotalienable.Thereforeanytransactionbetweentherespondents with regard to the assigned property is[null][ and][ void.]Itis further contended that therespondent playedfraudinpurchasing the property in the court auction, even thoughtheproperty is assigned property and that the1®' respondent[has]noright to purchase the same, which the court below failed to lookinto. Even prior to the date of attachment there existed two storybuildinginthescheduleproperty.AsperSection3oftheAssignment Act,1977,it prohibits, the sale of assignedlandinexecution of a decree. The ground of in alienability of the assignedland can be raised at any time, since such sales are prohibitedincluding sale and execution of the decree. Therefore the impugnedorder passed by the court below is liable to be set aside.

5. Whereas,learned counselfor thel^t respondent/D.Hrreiteratedthecontentionsurgedbeforethecourtsbelowandmainly 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 thisC.M.A.

6. Perused the record.

7. During the course of hearing,learned counselfortherespondents placed on record the decision of this Courtin“B.Noohara^u v. M.S.N. Charities and Others”^, wherein[it][ was][ held]as follows; “12. No doubt, Order 21, Rule 58(4)declared that theorder made under sub-rule (3) “while have the same force andbe subject to the same conditions as to appeal or otherwise as ifit were a decree” Thus, the order is declaredto be a ‘deemeddecree’ and not a ‘decree’ by itself”.

8. Further he relied on a decision of this Court in **Gurram Seetharam Reddyv.QuntiYashoda**^,whereinthelearned

Division Bench of this Court held as follows:

“12.Tothe same effect was Rule103,inrelationtodelivery of possession. A party aggrieved by an order passedunder Rule 63 or 103, had to ifle a suit to establish[his][ claim.][ In]

itsFourteenthandTwentySeventhReports,theLawCommission identified this as a factor, giving rise to multiplicityof proceedings.With a view to remedy the situation,it pointedout that such claims be finally adjudicated in the samesuit,instead of makingit necessary for the parties to file separatesuits. After taking into account the observations madeintheFourteenth Report,the Law Commission made the followingrecommendation in its Twenty Seventh Report:

“Para 41: Delay in execution proceedings is mainlydue to certain dilatory tactics adopted by Judgment-debts.When in execution proceedings any property is attached,there is generally a claim filed under Order XXI, Rule 58. Ifthis claim is rejected, a suit is filed under Rule 63 of thatOrder. If the attachment of the property is ifnally upheld,there are obstruction proceedings under Rule 97, followedby a suit under Rule 103. The fourteenth Report, containsa recommendation that claim proceedings or obstructionproceedings should be finally determined by the executionCourt,andthatwheretheyaresodeteimined,thereshould be no right of suit. This recommendation has beenmadewithaviewtoeliminatingdelayinexecutionproceedings.Unfortunately,wehavenostatisticstoindicate in what percentage of cases a suit is filed[under]Rule 63 or Rule 103. We are, however, in agreement[with]the recommendationin the Fourteenth Report,whichisbased upon certain evidence recorded by the Commission”

39. An examination of the provisions reveals that whileArticlell(i) specifically and directly refers to the applicationsfiled under Order 21 Rule 58, Section 38 is a general provision inrelationto suitsto set aside the attachment.Itis true that anapplication filed under Rule 58 areto be decided m the samemanner as asuit.However,they cannot be saidto be suitsreferred to in Section 38. The occasion to ifle a suit to set aside theattachmentunderSection38wouldarise,ifonlytheapplication filed under sub-rule (1) of Rule 58 is[not][ entertained]and returned.It is on such suits, that the Court fee is payableunderSection38.Ontheother hand,if theapplicationisentertained,clause11 (i)of ScheduleIIgetsstraightawayattracted.Even otherwise,itissettled principle of lawthatwheresituationsare governed by a specific and a generalprovision,the latter has to give way.Therefore,the Court feepayable for applications filed under Rule 58 of Order[21][ shall][ be]theoneprovidedforunderclausell(i)ofScheduleII.Consequently, the Court fee payable in an appeal filed againstthe orders passed in such applications is the same[as][ the][ one]payable on the application, as provided for under Section 49 ofthe Act. The view expressed in Biksha Reddy’s case (supraO, onthe Court fee payable on applications filed under Rule 97 ofOrder 21, holds good for that category of applications[as][ also][ the]appeals arising out of them. ”.

9. The learned Division Bench of this Court had discussedcatena of decisions in Gurram Sedetharam Reddy's case (supra)on various counts.It appears that the appellants havefiledtheclaim petition only to avoid execution proceedings by narratingfactsintheaffidavititcannotbelookedintoatthestageofexecution proceedings.

10. Therefore, following the decisions cited supra,[this][ Court]is inclined to dismiss the C.M.A, while granting liberty[to][ the][ claim]petitioners i.e appellants herein to appraise their grievance,if any,by filing separate proceedings before the competent authority/ forain accordance withlaw. Thereforethe appellants cannot[drawn]

attention of this Court to interfere with the impugned order passedby the court below, as it is unwarranted.

11. Inviewoftheforegoingdiscussion,theC.M.Aisdismissed accordingly. There shall be no order as to costs.dismissed accordingly. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall also stand closed.

HIGH COURT

DATED:29/12/2023

JUDGMENT

CMA.N0.21 OF 2017

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DISMISSING THE C.M.A.WITHOUT COSTS