ZAFU JAVEED Vs. V NARASIMHA REDDY

JUDGEMENT

(1.) This CCCA is filed against the order passed by the learned Second Additional Chief Judge, City Civil Court. Hyderabad, in EA No. 14 of 1995 in EP No. 20 of 1991 in OS No.29 of 1965 dated 8th July, 1998.

(2.) The appellant is the petitioner-third party before the lower Court. He filed an application before the Court below under Order 21, Rule 97 read with Section 151 of CPC to enquire into the objections raised with regard to the right, title and interest and also the executability of the decree against the properties situate in S No. 129/51 and 52 belonging to the petitioner. Though the case had a long history only the relevant events and particulars which arc necessary for disposal of the appeal are referred to in this order.

(3.) The suit in OS No.29 of 1965 was filed by one Mr. V. Radha Krishna Sastry against seven defendants seeking decree for specific performance of agreement of sale dated 29-12-1963 and for possession of the suit schedule property viz., Ac. 12-09 gts, being the western part of S. No.129/68 Paiki comprising of Ac.16-09 gts. of Shaikpet village, Hyderabad West Taluq. The learned Second Additional Chief Judge, by judgment and decree dismissed the suit for specific performance of the agreement. But, however, granted decree in favour of the plaintiff for a sum of Rs.14,000/- against 1st and 2nd defendants. Aggrieved by the said Judgment and decree, the plaintiff filed an appeal before this Court in CCCA No.14 of 1972. The 1st defendant also filed cross-objections. The Division Bench of this Court on 26th October, 1976 allowed the appeal and dismissed the cross-objections. The Judgment and Decree of the lower Court was set aside and the 2nd defendant and daughter of 1st defendant (since defendant died by that date) were directed to execute the sale-deed in favour of the plaintiff or his nominees on payment of the balance amounts. The orders passed by this Court in the Appeal became final. It appears that the decree holder sold the suit schedule property to Kaushik Co-operative Housing Society on 17-9-1985 and executed a GPA in favour of the President of the Society Mr. D. Srikanth Reddy. the Judgment Debtors had partly satisfied the decree by executing sale deeds in favour of the Members of the Society. However, when the Judgment Debtors were exhibiting the signs of disinclination to execute further sale deeds in full satisfaction of the decree, the decree passed in CCCA No. 14 of 1972 was got assigned in favour of the three others by deed of assignment decree dated 15-9-1998. Thus the assignee stepped into the shoes of the decree holders, and they filed EP No.20 of 1991 for obtaining conveyance deeds in regard to the lands under unsatisfied portion of the decree. The said deed of assignment was recognised by the civil Court and when it was challenged before the High Court in CRP No. 1579 of 1992 the same was dismissed on 16-10-1992. Thereafter, the trial Court approved the draft sale deeds to be executed in favour of the decree holders and their nominees. Again challenge was made to the said order of approval in CRP No. 193 of 1993 and they were upheld. Thereafter the Judgment Debtors questioned the orders of this Court in SLP No. 1138 of 1994 before the Supreme Court and the same was also dismissed. Consequent on the finality to the litigation 41 sale deeds were executed by the Court in favour of the decree holders and nominees on behalf of the Judgment Debtors. When the possession of the property was sought to be delivered to the decree holders one Mr. Omar filed EA No.24 of 1994 under Section 47 of CPC and the said EA was dismissed. Revision filed by him was also dismissed. While so, the petitioner/third party Appellant herein filed EA No.14 of 1995 among other EAs claiming that he is legal heir of Abdul Rub and Abdul Basith, who were the owners of the land in S No. 129/51 and 129/52, and the land situated in S.No.129/68 Paiki (hereinafter called 129/68 P) is the subject-matter of the Execution Petition and that in the process of execution of the said decree, the decree holders are proceeding against the property covered by S.No.129/51 and 52 and since the land covered by the decree is quite different from the land on which the decree is sought to be implemented, an application was filed for adjudicating the right, title and interest in the property and also the executability of the decree against the property situated in S. No.129/51 and 52 which is alleged to be belonging to the predecessors in interest of the petitioner. The matter was seriously contested by the decree holder. It is the case of the petitioner before the lower Court that the S.No. 129/68-P of Shaikpet village was a non-existing survey number and the petitioner is the owner and possessor of the properly situated in S.Nos. 129/51 and 52 of Shaikpet village. The petitioner is the legal heir of defendants No.3 and 4 who are alleged to be the owners of the land in S.No.129/52 and 129/51 to the extent of Ac.8-18 gts. and Ac.7-09 gts. respectively situated in village of Shaikpet, Former Hyderabad District. As far as the decree is concerned, it only relates to the land in S.No.129/68-P. Since the petitioner was apprehending dispossession from the properly in S-No.129/51 and 52, in the guise of executing the decree in OS No.29 of 1965, he filed an application under Order 21 Rule 97 CPC for appropriate relief. The said application was heard by the learned Judge holding that the property covered by the decree is quite different from the property in which the petitioner is claiming the ownership and therefore the petition filed under Order 21 Rule 97 was not maintainable. Accordingly, he dismissed the same by an order dated 8-7-1998. Aggrieved by the said order, the present Appeal has been filed under Section 96 ofCPC.