MATTAPARTHI SATYANARAYANA Vs. BHAVANA SESHAGIRI RAO

JUDGEMENT

(1.) The Civil Revision Petition is filed under Section 151 of Civil Procedure Code calling in question the Order of the learned Senior Civil Judge, Amalapuram in I.A.No. 7 of 1990 in I.P.No. 4 of 1959, dated: 16-4-2002.

(2.) Petitioner is the respondent in the interlocutory Application. It is necessary to refer to certain past events so as to appreciate the matter in proper perspective. One Rayapudi Jwala Narasimham was judged as insolvent by an Order passed by the Court in I.P.No. 4 of 1959, dated 5-11-1960. In pursuance of the Order in the insolvency proceedings, the estate of said Narasimham became vested in the Official Receiver. Consequently, some of the assets of the insolvent were brought to sale and one such property was sold having an extent of Ac.2-12 cents in S.No. 100/1 -B in Mungaga village in the auction conducted by the official receiver on 21-6-1979 for a sum of Rs. 4,000/-. The respondent purchased the said property. Thereafter, official receiver executed a registered sale deed on 26-9-1979 in favour of the respondent- prchaser. However, the petitioner made a claim to the property on the ground that he was the tenant of the insolvent's son and later also he purchased from the insolvant's son under purported agreement of sale dated 25-8-1977. Thereupon, the petitioner filed an application in I.A.No. 30 of 1979 against the official receiver to set aside the sale made by the official receiver on 26-9-1979. The respondent-purchaser filed a petition in I.A.No. 33 of 1979 in I.P.No. 4 of 1959 for injunction against the petitioner and the insolvent's son and for delivery of the petition Schedule property with standing crop thereon. I.A.No. 39 of 1979 was also filed by the respondent-purchaser for appointment of official receiver pending disposal of I.A.No. 33 of 1979. However, the insolvency Court dismissed the I.A.No. 33 of 1979 and I.A.No. 39 of 1979 by an Order dated 6-10-1980. But, I.A.No. 30 of 1979 filed by the petitioner for setting aside the sale was not disposed of Against the Order passed in I.A.No. 33 of 1979, the respondent filed an appeal in A.S.No. 168 of 1980 and against the Order in I.A.No. 39 of 1979, another appeal in A.S.No. 165 of 1980 was filed before the II Additional District Judge, Rajahmundry. The appellate Court, however, allowed the A.S.No. 168 of 1980 and held that the respondent-purchaser was entitled for taking delivery of the schedule property. However, the relief relating to injunction was dismissed. The petitioner herein, who is the respondent in I.A. filed C.R.P.No. 2528 of 1984 before this Court against the judgment in A.S.No. 168 of 1980. This Court by an Order dated 10-12-1986 allowed the Revision in part and modified the decree in A.S.No. 168 of 1980 and directed that the petitioner shall be allowed to continue in possession of the schedule land until I.A.No. 30 of 1979 to set aside the sale was disposed of and after disposal of I.A. No. 30 of 1979, the trial Court has to pass on Order in I.A.No. 33 of 1979 subject to the result in I.A.No. 30 of 1979. But, however, it is to be noted that I.A.No. 30 of 1979 filed by the petitioner was already dismissed for default on 27-6-1985. This fact was not brought to the notice of this Court for the reasons best known to the parties. Incidentally, I.A.No. 33 of 1979 was also dismissed for default on 16-10-1988. I.A.No.3 of 1983 (sic.1988) was filed by the petitioner to set aside the default Order dated 27-6-1985 and the said petition was also dismissed as infructuous on 16-10-1988. The situation thus created was that both the applications filed by the petitioner in I.A.No. 30 of 1979 and I.A.No. 3 of 1983 stood dismissed.

(3.) Therefore, the respondent-purchaser filed a fresh application in I.A.No. 7 of 1990 in I.P.No. 4 of 1959 for delivery of petition schedule property in pursuance of the Order and directions of the learned II Additional District Judge, Rajahmundry in A.S.No. 168 of 1980 as affirmed by the High Court in C.R.P. No.2528 of 1984. An objection was taken by the petitioner herein to the effect that the application is not maintainable as earlier application filed by the respondent- purchaser in LA. No. 33 of 1979 was dismissed for default and therefore, it is a bar for filing a fresh application without taking steps for getting the Order of default set aside. However, the learned Senior Civil Judge in I.A. No.7 of 1990 sustained the objection and dismissed the I.A. by Orders dated 25-7-1996. Against the said Orders, the respondent-purchaser filed appeal in A.S. No. 117 of 1996 and the learned District Judge by judgment dated 9-10-2000 set. aside the Orders and allowed the appeal holding that fresh application in I.A.No.7 of 1990 was maintainable and the matter was remitted to the lower Court for decision on merits. The lower Court after hearing the parties passed Order in I.A. No.7 of 1990 dated 16-4-2002 allowing the application with a direction to deliver the petition schedule property to the respondent- purchaser after evicting the petitioner herein. Against the said Order, the petitioner filed A.S. No. 88 of 2002 before the VIII Additional District Judge, Amalapuram. The learned Judge dismissed the appeal confirming the Order passed in I.A.No.7 of 1990. Against the said Order, the present Civil Revision Petition has been filed.