C RABINDRANATH SINGH Vs. K V SEETHARAMAYYA

JUDGEMENT

(1.) These two companion revisions arise out of a common order dated 6-10-1982 made in E.A. Nos. 1337/81 and 832/82 in O.S. No. 334/70 on the file of thelst Addl. Subordinate Judge,Vijayawada. The petitioners in both the revisions are the judgement-debtors in the suit. The following two questions arise for determination: (1) When on the application of the decree holder-court auction purchaser delivery of the property was effected, can the decree-holder ask for redelivery on the basis of dispossession subsequent to delivery and (2) does the theory of revival apply to cases where delivery was effected but not recorded by court.

(2.) The following material facts need to be noticed. In the suit, a preliminary decree was passed on 31-7-1972 followed by a final decree on 20-8-1973. In E.P. No. 170/74 the property was brought to sale on 31-12-1974 and the decree-holder himself became the auction pur-chaser. The sale was confirmed on 23.4.1979 and E.P. No. 170/74 was terminated after recording full satisfaction. The respondent-decree -holder-auction purchaser applied in E.A. No. 682/79 on 29-6-1979 for delivery. Delivery was ordered and the Amin effected -delivery to the respondent oh 13.7.1979 and took a receipt from the respondent.On 2-8-1979 before the court recorded delivery, the petitioners applied in E.A. No. 1337/79 for setting aside the sale after depositing the sale warrant amount and poundage. Some time during the period 13-7-79, & 2-8-79,-the respondent who was earlier given delivery was dispossessed. While EA Nos. 682/79 & 1337/79 were still pending before the court, the respondent applied in E.A. No. 1337/81 on 24-10-1981 for delivery or re-delivery of the property oh the basis of dispossession on 24.7.1979. On 17-3-1982, both E.A. No. 682/79 and E.A. No. 1337/81 were dismissed for default. It appears that E.A. No. 1337/79, the petition filed by the petitioners for setting aside the sale was subsequently dismissed. The respondent applied in -E.A. No; 464/82 for restoration of E.A. No. 1337/81 and another EA. No. 832/82 for restoration of E.A. No. 682/79. Both those applications were allowed and redelivery of the property was ordered in favour of the respondentby the impugned order dated 6-10-1 982. The correctnees of that order has been assailed in toe two companion revisions principally on the points set out above.

(3.) For the purposes of this discussion, we need only consider cases involving decrees for possession of property and decrees in execution of which property was sold to reslies the decree amount. In the case of a decree for possession, the decree-holder would apply for delivering possession decreed to him and the shall satisfaction of that decree would be recorded when posession of the property is delivered in fa your of the decree holder. In cases of decree for money in execution of which property of the judgment-debtor is brought to sale, sale, full satisfaction or part satisfaction Of the decree will be recorded assoon as the sale, depending upon the price fetched at such court sale. If such price exceed the sale warrant account, full satisfaction would be recorded. If the price was less than the sale warrant amonnt, part satisfaction would be recorded. We are concerned with a Situation that in this court sale, the price fetched more than the sale warrant amount and accordingly full satisfactioin was recorded and the E.P. was terminated. The Respondent who is both the decree-holder and court auction purchaser had thereafter only the right to apply fof delivefy of the property, When once the court order delivery Of the property and delivery was effected by the Amin, the decree for possession gets fully satisfiad. when pursuant to an order for delivefy made in favour bf the decree-holder-auction purchaser and the Amin delivers the property, nothing further remains for the court to do in aid of the decree holder- auction purchaser. In practice, howerver, when decree holder-auction purchaser was given delivery, the Court will make a formal order of recording delivery and close the appliction for delivery. In the case on hand, EA No.682/79 was filed for defivery. Delivery was in fact ordered and to that extent EANo.6S2/79 was allowed on 29-6-79 itself when the court ordered delivery and pursuant to that oroter the Amin effected delivery on 13-7-1 979 and obtained a receipt from the respondent in token of having delivery of the property to him. True on 17-3-1982 the court passed an order dismissing E.A. No. 682/79 allegedly for default, When pnce delivery was effected, nothing more remained for court than to record delivery and close the execution application The circumstance that on 17-3-1982 the Court purported to dismiss the E.A. for default does not entitle the respondent to a have it restored and obtain a fresh order for delivery. Even if E. A, No. 682/79 were to be restored, the court can do nothing more than to record the delivery which, was earlier effected on 13-7-1979. E.A.No. 682/79 , in which delivery was earlier ordered on 29-6-1979 has worked, itself out when pursuant to the order made therein the delivery was 'effected by the Amin and the decree holder passed the delivery receipt on 13-7-1979, E.A.No. 682/79 cannot, there- fore, be treated as having been disposed of for a statistical purpose enabling in any manner the decree holder to apply for restoration of the E.A.No. 682/79 The impugned order allowing E.A, No. 833/82 directing restolation of E.A-No. 682/79 cannot, therefore, be sustained. C.R.P.No.39.82/82 has to be and is accordingly allowed..