Mulla Mabu vs M Lakshmi Devi & Others

Dr. V.R.K. Krupa Sagar, J

1) These two Civil Revision Petitions are filed under Sec.115 of C.P.C. and they are between the same parties and subject matter is connected to one another and therefore they can be disposed of by this common order.

2) The revision petitioner was the defendant in O.S.99 of 2015 and is respondent in E.P.34 of 2017.

3) Alleging that the revision petitioner borrowed Rs.2,50,000/- from one M.Gopal of Dharmavaram and that he had executed a registered simple mortgage deed keeping immovable property as security, the suit in O.S.99 of 2015 was filed by the legal representatives of the creditor/mortgagee/ Sri M.Gopal stating that the mortgagee died. The defendant contested the suit and finally learned Senior Civil Judge, Dharmavaram found truth in the case of plaintiffs therein and granted the relief and ordered for drawing up preliminary decree, by giving opportunity to the defendant therein to pay Rs.3,95,000/- with interest to plaintiffs therein within a span of three months failing which the plaintiff were given liberty to seek for final decree and sale of mortgaged property towards the realization of the decretal amount. It is not known when the final decree was passed. During the subsequent periods those plaintiffs filed E.P.34 of 2017 under Order XXI Rule 64 and 66 C.P.C. for sale of the mortgaged property which is shown in the E.P.Schedule.

4) During the pendency of those proceedings defendant/J.Dr therein filed E.A.97 of 2019 under Order VIII Rule 14 and Sec.151 of C.P.C. with a prayer to condone the delay and receive five documents that are listed in the application. A counter was put in by the opposite side. The J.Dr also filed E.A.85 of 2019 under Order XVI Rule 14 and Sec.151 of C.P.C. seeking summons to the Tahsildar, Dharmavaram to give evidence on his behalf and requested the Court to examine him as a court witness. The respondents therein filed their counter resisting the prayer. The learned Senior Civil Judge, Dharmavaram heard both the said applications and disposed of both the applications by two separate orders dt.14.08.2019.

5) Aggrieved by those Orders the applicant in both the execution applications who is the J.Dr preferred these two revision petitions. C.R.P.3328 of 2019 assails the order in E.A.97 of 2019. The C.R.P.3342 of 2019 assails the order in E.A.85 of 2019. The grounds urged in the both the revisions are similar. For respondents in these revisions, the learned counsel made appearance and contended that the orders of the lower court are correct and did not require any interference by this Revisional Court. The learned counsels on both sides submitted their arguments.

6) Now the point for determination is:-

Whether the impugned orders were illegal or suffer from material irregularity?

7) POINT:-

The substance of the dispute is that the revision petitioner raised a claim before the executing Court that E.P. schedule property is in S.No.494 and it was an assigned land and Government assigned patta and such property could not be brought for sale in execution of decree. As against these, the contention of the D.Hrs/respondents in these revisions is that the E.P. schedule property is a private property which the J.Dr admitted himself during the evidence and they are not the government assigned properties and therefore the objections raised by the J.Dr cannot be sustained. Learned executing Court found favour with the submissions made by the D.Hrs. While doing so, it also brought on record that J.Dr who intended to have documents received by the Court failed to satisfy it as to how they were connected to the J.Drs, since the name of the J.Dr Sri M.Mabu and all those documents stood in the name of Sri Gujjala Hanumanthu. In these revisions, it is stated that the proposed documents were initially not available with the revision petitioner and they were filed assigning the cause of delay and they ought to have been received and the observations of the executing court that they are irrelevant documents and that they pertain to third party are in correct. It is further stated that since the contentions of this revision petitioner is that the E.P. schedule property is assigned land it is for him to sustain and for that purpose evidence of Tashildar, Dharmavaram who holds the relevant records is very much necessary and therefore refusal of execution Court in summoning the witness is incorrect. It is on these points, the arguments of the learned counsel for revision petitioner is that the impugned orders suffers from illegality and irregularity.

8) As against that the learned counsel for the respondents pointed out that at all relevant times, the revision petitioner failed to produce the relevant documents and he had come up with documents that pertain to third parties and has been making arguments based on those documents and claiming assignment. He had not produced the original but only filed Photostat copy and that Photostat copy indicates the name of one C.Narayanamma and not that of the revision petitioner and that during the course of the trial this revision petitioner himself admitted that it was a private property and for these reasons the leaned counsel argued that these are all vexatious revisions and cannot be considered.

9) Having gone through the entire material on record and having considered the rival submissions one has to notice the following aspects. A perusal of the Judgment dt. 15.11.2016 of learned Senior Civil Judge, Dharamavaram in O.S.99 of 2015 would show that this revisions petitioner executed a registered simple mortgage and based on that security obtained money from the plaintiffs therein. In his pleadings he took specific plea that the property mortgaged was a Government assigned land. Though he took such a plea, the record shows that during the course of the trial he did not adduce any evidence about the document of assigned land. In fact he did not adduce any document during the course of the trial. The lower Court judgment would also show that arguments were advanced on both sides, seeking adjudication whether the mortgaged property was a private property or the Government assigned land. Learned trial Court at Page ‘9’ of the Judgment discussed those aspects and stated that the defendant (revision petitioner herein) during his cross examination admitted that the mortgaged property was not assigned land. It is further mentioned that the registered mortgage simple mortgage deed Ex.A1, which was executed by the defendant contains specific recitals that the mortgagor got the property under a registered Document No.5174 of 2011. It is further mentioned that contrary to all that the defendant did not produce any other document. It is on all these materials the trial Court, concluded that the mortgaged property was a private property and it was not the government assigned land. During the hearing of two revisions, it is a clear submission of the learned counsel for the revision petitioner that the judgment and decree in O.S.99 of 2015 was not challenged in appeal by the defendant therein who is the revision petitioner in these revisions. Thus, on the aspect whether the property is Government assigned land or the property is private property dispute was debated and dispute was decided and that decision attained finality as none appealed against it. It is that judgment and that decree which was put for execution by way of E.P.34 of 2017. The defendant having received an adverse finding against his contention about the legal nature of the mortgaged property, once again made an attempt to repeat the same theory before the same court which was executing the decree passed by itself. It is for the executing Court to see whether such endeavour on the part of the present revision petitioner is permissible in the context of Sec.11 C.P.C. which provides that fact that was debated and decided at one stage of proceedings can be permitted to re-agitate the same at different stage of the same litigation especially in the context of the law laid down by the Hon’ble Supreme Court of India in C.V.Rajendran And Anr., Vs N.M.Muhammed Kunhi 2002(7) SCC 447 and Hope Plantations Ltd., Vs Taluk Land Board Peermade & Anr., 1999(5) SCC 590. Before the executing Court this Revision Petitioner filed E.A.97 of 2019 under Order VIII Rule 14 C.P.C to condone the delay in filing the documents. One could not see Rule 14 in Order VIII C.P.C. Perhaps, the revision petitioner must have intended to cite Order VII Rule 14 C.P.C which provides for leave of the Court for filing documents which the plaintiff failed to file at the initial stage of the case. Be that as it may, the said application has filed by the revision petitioner not at the commencement of the execution proceedings, but after waiting for the closure of evidence for D.Hr and thereafter during his evidence as Rw.1. The only ground urged in the application is that the documents were misplaced in his house and they were traced. There is conspicuous absence of mentioning the date on which he traced them. There are five documents listed and 5th document is Photostat copy which was seriously objected by the D.Hr who filed their counter. The sworn affidavit of the revision petitioner has no indication as to why he intended to file the Photostat copy. The affidavit has not made any reference to any of the five documents informing the court about the relevancy of any such document for the proceedings that were pending before the executing court. It is noted by the learned executing Court the first four documents stand in the name of Gujjala Hanmanthu and the 5th documents stand in the name of Smt C.Narayanamma. Thus none of them stands in the name of Mulla Mabu who is the revision petitioner. The affidavit is totally silent as to how he is connected to any of those documents. It was this aspect of the matter that made the learned executing court to hold that documents pertain to third parties and could not be received and since this revision petitioner did not explain why those documents were relevant. In this revision, leaned counsel for revision petitioner was completely at loss to explain how that observation of executing Court could be called as in-correct or irregularity of the jurisdiction. In C.R.P.3342 of 2019 the agitation of the revision petitioner is that his request for summoning the Tashildar to prove that the property mortgaged was the Government assigned land and that was illegally refused. One must notice that in his sworn affidavit filed before the executing Court in E.A. 85 of 2019 he has not mentioned in whose name the patta was given. The affidavit does not disclose that the patta was given in his name. His own affidavit reads that in S.No.494 there is Ac.22.72 cents of land is there and according to him that is assigned land. Be it noted it is not that extent of property that is involved in dispute. He does not mention the date of patta and when it was given. Thus, his endevour before the executing Court indicates totally vagueness thereby making one to suspect that he was indulging in vexatious litigation. The refusal of executing Court in not calling the witness is certainly justifiable. Viewed from any angle, the revision petitioner certainly failed to show any illegality in exercise of jurisdiction or irregularity in exercise of jurisdiction on the part of the executing Court. Sitting in the revision, this court finds no reason for interference with the Orders of the executing Court. Therefore, the point is answered against the revision petitioner.

10) In the result, both the Civil Revision Petitions are dismissed. There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any pending, shall stand closed.