DUBBA JAYA RAMI REDDY Vs. K JAITHUN BEE

JUDGEMENT

(1.) This civil revision petition arises out of order, dated 07.09.2011, in C.M.A. No. 1 of 2010, on the file of the learned Senior Civil Judge, Atmakur. The petitioner secured a decree in O.S. No. 140 of 2001 on the file of the learned Junior Civil Judge, Atmakur. During the pendency of the suit, the property belonging to the respondents was attached. Following the decree, the petitioner filed E.P. No. 85 of 2003 in which the attached property was brought to sale. The petitioner filed an application for recording delivery of the property. Accordingly, the executing Court after recording delivery of possession of the property, closed the E.A., on 23.07.2009. Thereafter, the respondents have filed E.A. No. 154 of 2007 in E.P. No. 85 of 2003 under Section 47 CPC for setting aside the sale held on 06.10.2004. This application was dismissed by the trial Court. Feeling aggrieved thereby, the respondent filed C.M.A. No. 1 of 2010. The learned Senior Civil Judge has not only entertained the said CMA but also allowed the same by the order under revision.

(2.) At the hearing, Sri E.V.V.S. Ravi Kumar, learned counsel for the petitioner, submitted that the lower appellate Court had no jurisdiction to entertain the CMA in view of amendment to Section 2(2) of CPC, which omitted words "Section 47 " by Act CIV of 1976 w.e.f., 01.02.1977 and that therefore no CMA against the order passed in an execution proceeding would lie under Order XLIII CPC. He accordingly submitted that the lower appellate Court has committed a serious jurisdictional error in entertaining and allowing the CMA. He has placed reliance on the judgment of a Division Bench of this Court in Challa Ramamurthy v. Pasumarti Adinarayana Sons, Registered firm rep. by its Managing Partner Pasumarti Ramamurthy.

(3.) Sri S. Venkata Subba Rao, learned counsel for the respondents, while fairly conceding to this legal position, however, sought to sustain the order of the lower appellate Court by stating that the party cannot be made to suffer for choosing a wrong forum by his counsel.