KHAJA SAFIULLAH Vs. METTUBAGA REDDY

JUDGEMENT

(1.) The fourth defendant in O.S.No. 195 of 2005 on the file of the Court of the II Additional District Judge, Ranga Reddy, filed the present Civil Revision Petition under Article 227 of Constitution of India. He is aggrieved by the order, dated 03.06.2006, in I.A.No. 1329 of 2005 in the said suit passed by the lower Court. By impugned order, the learned trial Judge suspended the Judgment and Decree in O.S.No. 1331 of 2004 on the file of the Court of the Principal Junior Civil Judge (East and North), Ranga Reddy District (hereafter called, the offending Judgment). The respondents 1 to 33 herein (hereafter called, the plaintiffs) filed the suit for a decree declaring the offending Judgment as null and void and for perpetual injunction restraining defendants 4 and 5 from interfering with their possession. The offending Judgment was challenged inter alia on the ground that the same was obtained by the fourth defendant in collusion with the fifth defendant in respect of the suit schedule property. They alleged that their ancestors were protected tenants of the suit schedule property, in respect of which, Certificates under Sections 35, 37 and 38E of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (the Act, for brevity) were obtained. The fourth defendant, however, filed O.S.No. 1331 of 2004 against fifth defendant without disclosing all this based on an agreement allegedly executed by the fifth defendant and obtained ex parte decree for declaration of title. The plaintiffs came to know about this from a paper publication in Eenadu, dated 25.05.2005. They alleged that defendant in O.S.No. 1331 of 2004, Nawab Mir Amjad Ali, had no right, title or possession and that they perfected their title by adverse possession.

(2.) Along with the suit, they filed two interlocutory applications. I.A.No.1329 of 2005 was filed under Section 151 of Code of Civil Procedure, 1908 (CPC) to suspend the offending Judgment and I.A.No. 1330 of 2005 was filed under Order XXXIX Rules 1 and 2. of CPC for grant of temporary injunction. The fourth defendant opposed the applications. He alleged that his father purchased the land admeasuring Acs.52.14 guntas from Nawab Mir Amjad Ali under unregistered sale deed, dated 12.03.1964, that when he did not execute sale deed pursuant to the unregistered document, he filed O.S.No.1331 of 2004 and obtained a decree for declaration and that the plaintiffs had no prima facie case. In support of the application for suspension of the offending Judgment, the plaintiffs alleged that after obtaining offending Judgment, the fourth defendant tried to approach revenue authorities for mutation in the revenue records by taking advantage of the offending Judgment and if the same is allowed, it would cause hardship to plaintiffs. The fourth defendant also opposed the application raising similar grounds, which are raised in opposition to the application for ad interim injunction.

(3.) The trial Court considered both applications separately. By order, dated 03.06.2006, the trial Court granted ad Interim injunction in I.A.No.1330 of 2005. Aggrieved by the same, the fourth defendant filed Civil Miscellaneous Appeal in C.M.A.No.618 of 2006 before this Court. The same was allowed on 17.08.2006 and the matter was remanded to the lower Court for fresh enquiry. Be that as it is, by separate order in I.A.No.1329 of 2005, dated 03.06.2006, the trial Court came to the conclusion that if the offending Judgment is not suspended, it would cause hardship to the plaintiffs and would lead to multifarious litigations. Accordingly, the offending Judgment was suspended. Learned Counsel for fourth defendant/petitioner submits that the impugned brder of the trial Court suspending the offending Judgment is without jurisdiction. The power to stay the Judgment either under Order XLI Rule 5 or under Section 151 of CPC, can be exercised only when a decree is executable. If the decree is not executable, the same cannot be suspended nor stayed. Secondly, he would urge that the order of the trial Court without proper reasons is unsustainable. He placed reliance on Krishnamurthy v Suryakantamma, AIR 1955 ANDHRA 5 K.M.Sastry v Director, Postgraduate Centre, Anantapur, AIR 1982 AP 176 Ramachandra Reddy v Janaki 1984 (1) ALT 387 and M/s. Shree Chamundi Mopeds Limited v Church of South India Trust Association, Madras. AIR 1992 SC 1439 Per contra, learned counsel for plaintiffs/respondents 1 to 33 contends that the suit was filed by the fourth defendant against Nawab Mir Amjad Ali on 07.09.2004 and ex parte decree was obtained on 22.11.2004, which itself would show that it was a collusive decree. When the plaintiffs are not made parties and when they are directly adversely affected by such ex parte collusive decree, they had no other go except to file the suit to declare the offending Judgment as null and void. Under A.P.Rights in Land and Pattadar Pass Books Act, 1971 (RoR Act, for brevity), a person acquiring rights to agricultural land under a Court decree can seek mutation in revenue records as well as pattadar pass books, which carry presumption of title under the RoR Act, and therefore, if the offending Judgment is not suspended there is likelihood of the fourth defendant getting pattadar pass books and transferring, the property to the third parties to defeat the claim of the plaintiffs in the suit. According to learned Counsel when a person is not a party to the collusive decree such person can always seek suspension of the said decree in a subsequent suit even at interlocutory stage. He placed reliance on the decision of the Allahabad High Court in Surajdeo v Board of Revenue. AIR 1982 ALLAHABAD 23 The short question is whether it is competent to the civil Court to suspend a declaratory decree in exercising of its inherent powers under Section 151 of CPC. Be it noted Rule 5 of Order XLI of CPC confers power on the appellate Court to stay any decree against which appeal is filed, if it is satisfied that the execution of an appeal to decree would cause substantial loss to the party applying for stay and when application for stay is made without unreasonable delay. 'Decree' is defined as a formal expression of an adjudication conclusively determining the rights of the parties with regard to the matters in controversy in the Suit (Section 2(2) of CPC). Therefore, looking at the language of Order XLI Rule 5 of CPC, there cannot be any doubt that the appellate Court can even stay the operation of a decree for declaration because while defining 'Decree' CPC does not make any difference between a declaratory decree or non-declaratory decree. This would furnish a clue to appreciate the question raised by the learned counsel for the petitioner.