Posts

Showing posts from July, 2013

Rejoinder Allowed = The application seeking permission to file rejoinder was filed only after the evidence of the petitioner was closed. - Filing of rejoinder became necessary only on account of the amendment caused to the written statement. = A rejoinder has a very limited purpose to serve. Except that it incorporates the plea of denial or explanation, by itself, it cannot plead any new or fresh fact, unless permitted by the Court. The issues are to be framed on the basis of the pleadings, viz., the plaint and the written statement. The role that can be attributed to the rejoinder in the context of framing of issues or leading of evidence is minimal. It only places on record, the disagreement on the part of the plaintiff about the facts pleaded through the amendment. Granting of permission to the petitioner to file a rejoinder would only make his disagreement with the facts pleaded by the respondents 1 and 2 through the amendment of plaint, and nothing more. To be specific, it does not entail framing of any additional issue much less examination of witnesses or reopening of evidence. Hence, the Civil Revision Petition is allowed. It is directed that the trial Court shall take on record the rejoinder, presented by the petitioner and it shall not either reopen the evidence or permit examination of any witness on that ground. There shall be no order as to costs. The miscellaneous petition filed in this revision petition shall also stand disposed of.

published in  http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=9662
HONOURABLE SRI JUSTICE L. NARASIMHA REDDY          

CIVIL REVISION PETITION No.2078 OF 2012    

18-02-2013

K. Vishnu

K. Janardhan and others

Counsel for the Petitioner: Sri  D. Hanumanth Rao

Counsel for the Respondents: Sri V. Sudhakar Reddy

<Gist:

>Head Note:

?Cases referred:

ORDER:
The petitioner filed O.S No.63 of 2008 in the Court of the Senior Civil Judge,
Srikalahasthi, against the residents for the relief of partition and separate
possession of suit schedule properties.  It appears that written statement was
filed by some of the defendants and the others have adopted the same.  The
respondents 1 and 2 i.e. the defendants 1 and 2 filed an application under Order
- VI Rule - 17 CPC with a prayer to permit them to amend the written statement.
The application was ordered. Though time was granted to the petitioner to file
rejoinder, he did not avail that opportunity.  Thereafter, issues were framed
…
Post a Comment
Read more

OR. 6, rule 17 C.P.C.Order 6 Rule 17 will ordinarily be refused if such amendment would be to take away from a party a legal right which had accrued to him by lapse of time. = Points to be consider while deciding Amendment petition = "(i) whether the amendment sought is imperative for proper or effective adjudication of the case; (ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application." = It is also not the pleaded case of the respondents that the relief sought to be claimed by way of amendment is barred by limitation.It is neither the pleaded case of the respondents nor any finding is rendered by the Court below that by permitting the amendment sought by the petitioner either a new cause of action is sought to be introduced or the nature and character of the suit will undergo a change. Lower court committed error in dismissing the amendment petition.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8779
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.1649 of 2011

23-1-2012

Perim Janardhana Rao s/o. Perim Raja

Malepati Balaji s/o. M.Pushpaiah Naidu and others                                    

Counsel for petitioner : Sri V. Jagapathi

Counsel for respondents : Sri Dammalapati Srinivas

?CASES REFERRED:    
1. (1978) 10 Ch.D. 393 : (1874-80) All.E.R. Rep.Ext 1612 (CA)
2.  (1884) 26 Ch.D. 700 (CA)
3. AIR 1961 S.C. 325
4.  (1978) 2 SCC 91
5.  (2009) 10 SCC 84  


JUDGMENT:
        The plaintiff in O.S.No.107/2007 is the revision petitioner.  He filed the
said suit against the respondents for declaring that the suit schedule property
is nominally purchased in the name of defendant Nos.1 and 2 from out of the
amounts received by defendant Nos.1 and 3 from him and for granting permanent
injunction restraining defendant Nos.1 and 2 and persons claiming through them
from in any manner alienating the…
Post a Comment
Read more

unstamped or insufficiently stamped - unregistered partition deed = whether the decision of the learned Junior Civil Judge, Rayadurg, Anantapur district, overruling the petitioner's objection for marking of unregistered partition deed dated 20-02-1994 suffers from any illegality.= yes = The law is settled that an unregistered document which requires registration is admissible in evidence under Section 49 of the Indian Registration Act, 1908, for collateral purpose (see Chinnappareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy and others1 and Roshan Singh v. Zile Singh2), whereas an unstamped or insufficiently stamped document cannot be admitted into evidence for any purpose including for collateral purpose in the face of bar under Section 35 of the Indian Stamp Act, 1899 [see Sanjeeva Reddi v. Johanputra Reddi3 and Rachakonda Ramakoteswara Rao Vs Manohar Fuel Centre, Nereducherla, Khammam4]. 4. In the instant case, the Court below has proceeded on the premise that the document sought to be marked is an unregistered and insufficiently stamped partition deed. However, it misdirected itself in thinking that such a document can be marked in evidence for collateral purpose by placing reliance on the judgment of this Court in Guntupalli Venkata Ramaiah Vs Guntupalli Purnachandra Rao5. 5. From a perusal of the judgment in Guntupalli Venkata Ramaiah (supra), it is evident that the case before this Court arose in a suit for partition, wherein this Court has held that the two documents which were in dispute can be looked into for a collateral purpose in spite of non-registration of the documents, if the stamp duty and penalty is paid. =The respondents are given liberty to pay proper stamp duty and penalty and resubmit the same in evidence thereafter. On payment of such stamp duty and penalty, the Court below shall mark the same into evidence.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8794

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY        

Civil Revision Petition No.4559 of 2011

25-01-2012

Kapu Anasuyamma,Anantapur district  

K.Malla Reddy and 2 others, Anantapur district

Counsel for the petitioner:     Sri Naresh Kumar Gundapu  
for Sri Nimmagadda Satyanarayana

Counsel for the respondents:Sri Chetluru Srinivas

? Cases referred:
1. AIR 1969 AP 242
2. AIR 1988 SC 881
3. AIR 1972 AP 373
4. 2003 (2) ALD 638
5. 2010 (6) ALD 4

Order:

        The short issue that arise for consideration in this civil revision
petition is
whether the decision of the learned Junior Civil Judge, Rayadurg,
Anantapur district, overruling the petitioner's objection for marking of unregistered partition deed dated 20-02-1994 suffers from any illegality.

2. The petitioner filed O.S.No.43 of 2008 against the respondents for perpetual
injunction.  During the course of chief-examination of D.W.1, he sought to mark
an unreg…
Post a Comment
Read more

secs. 45, 73 of Evidence Act r/w Or. 26, rule 10 of C.P.C. = Petition for sending the document for expert opinion ? = the application was dismissed on three grounds, namely, that the same was filed at a belated stage, that in the plaint, the petitioners have not denied the signatures on the receipts and that PW.1 during his cross-examination admitted the signatures but denied the contents thereof and hence the burden is on the petitioners to prove that they have never received any amounts under those receipts. This order, however, will not preclude the petitioners from requesting the Court to compare the contents of Exs.B5 and B6 and the signatures on Ex.B10. If such a request is made, the Court below shall exercise its discretion under Section 73 of the Act and render its findings thereon. Subject to the above observations, the civil revision petition is dismissed.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8811
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY          

Civil Revision Petition No.5388 of 2011

27.01.2012

P.Seshagiri Rao and another

P.Soma Sekhar Rao and another

^Counsel for the Petitioners:  Ms.Manjiri S.Ganu

!Counsel for respondents:  Sri R.A.Achutanand

? Cases referred:
1. AIR 1979 SC 14
2. 2008-AWC-4-3790
3. AIR 2008 AP 163

ORDER:
This civil revision petition arises out of order, dated 28.09.2011, in I.A.No.79
of 2011, in O.S.No.37 of 2003, on the file of the learned Judge, Family Court,
Secunderabad.
The petitioners filed the suit against the respondents for declaration of their
title and also for cancellation of the judgment and decree, dated 12.07.2002, in
O.S.No.1203 of 2001, on the file of the learned XI Additional Junior Civil
Judge, Secunderabad and for consequential injunction.  The evidence has
commenced in the year 2008.
The respondents have confronted petitioner No.1,
who was examine…
Post a Comment
Read more

Rule 11 of Order VII of the Code = mere absence of detailed particulars relating to the nature of the properties cannot be treated as the plaint not disclosing cause of action. If the plaintiff lays a foundation relating to his title, he can always substantiate the same by adducing oral and documentary evidence. Such an exercise will be undertaken only during the trial. As rejection of the plaint at the very inception leads to drastic result of non-suiting the plaintiff, Rule 11 of Order VII of the Code needs to be strictly construed. Except in cases where it fails to disclose any cause of action, the plaint cannot be rejected under clause (a) of Rule 11 of Order VII.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8801
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.4582 of 2011

30-1-2012

R. Raghunatha Reddy and another

R. Ramakrishna Reddy

Counsel for petitioner : Sri K.G. Krishna Murthy

Counsel for respondent : Sri S.V. Bhatt

?CASES REFERRED:    
1998 AIR SCW 237  

ORDER:
        This Civil Revision Petition arises out of order dated 19-8-2011 in
I.A.No.52/2011 in O.S.No.5/2011 on the file of the learned I Additional District
Judge, Chittoor.
        The petitioners are defendants in the above noted suit filed by the
respondent for declaration of title and permanent injunction.  The petitioners
filed I.A.No.52/2011 under Order VII Rule 11(a) and Section 151 of the Code of
Civil Procedure, 1908 (for short "the Code") seeking rejection of the plaint on
the ground that the same does not disclose cause of action.  The lower Court
rejected the said application.  Hence, the petitioners filed the pre…
Post a Comment
Read more

Revenue - Lack of Jurisdiction of Tahsildar in civil matters of private lands = while there are civil suits pending between them and the third respondent regarding several private patta lands, the second respondent had issued a notice dated 25.03.2013, calling upon them to attend his office to resolve the disputes.= The Tahsildar, who is present in the Court today, fairly states that he lacked jurisdiction to issue the impugned notice as the subject lands are private patta lands, and not lands belonging to the Government. He would express his unconditional apology for having issued the impugned notice and in having directed the petitioners to appear before him for resolution of disputes. He would state that it is only because the third respondent had submitted a representation that he has issued the impugned notice. Since the Tahsildar admits that he lacks jurisdiction, the impugned proceedings are set aside. Passing of such frivolous orders, in matters in which the revenue officials lack jurisdiction, has resulted not only in the petitioners having to incur needless expenditure but also of the precious Court’s time being wasted. I consider it appropriate, therefore, while recording the submission of the Tahsildar that he will no longer interfere with the matter, to dispose of the Writ Petition with exemplary costs of Rs.10,000/- (Rupees ten thousand only) to be paid by the second respondent, from his personal funds, to the East Godavari District Legal Services Authority within two weeks from today.

published in http://164.100.12.10/hcorders/orders/2013/wp/wp_11782_2013.html WP 11782 / 2013

WPSR 63201 / 2013
PETITIONERRESPONDENTKOLLU ABBAI, E.G.DIST & ANOTHER  VSTHE REVENUE DIVISIONAL OFFICER, E.D.DIST & 2 OTHERSPET.ADV. : DHANAMJAYARESP.ADV. : GP FOR REVENUESUBJECT: REVENUE MATTERSDISTRICT:  WEST GODAVARITHE HON’BLE SRI JUSTICE RAMESH RANGANATHAN
WRIT PETITION No.11782 of 2013 ORDER:                                                                             
          The relief sought for in this Writ Petition is to declare the action of the respondents, more particularly the second respondent, in issuing the impugned notice dated 25.03.2013 in connection with the land dispute, when the matter is seized of by the Civil Court, as arbitrary and illegal.           The petitioners’ grievance is that, while there are civil suits pending between them and the third respondent regarding several private patta lands, the second respondent had issued a notice dated 25.03.2013, calling u…
Post a Comment
Read more

No evidence of possession - no injunction = the RDO dated 03.08.1997, marked as Ex.B10, the said order of MRO was set aside and the said appellate order has become final.= In order to prove possession, the plaintiff has strongly relied upon Ex.A6, the order of the Mandal Revenue Officer dated 16.07.1992 whereunder he claimed that the name of the plaintiff is shown to the extent of Ac.0.7 ½ cents in Sy.No.398/3. However, against the said order, the defendants had filed an appeal before the Revenue Divisional Officer and under order of the RDO dated 03.08.1997, marked as Ex.B10, the said order of MRO was set aside and the said appellate order has become final. Other than the said document, the documents filed by the plaintiff are tax receipts, which hardly have any evidentiary value to establish possession and entitled for injunction.

INTHE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
FRIDAY, THE TWENTY SECOND DAY OF MARCHTWO THOUSAND AND THIRTEENPRESENTTHE HON'BLE SRI JUSTICE VILAS V. AFZULPURKARSECOND APPEAL No.149 of 2013BETWEEN
Poola Sakunthalamma. ... APPELLANT ANDBadiri Narayana and nine others. ...RESPONDENTS Counsel for the Appellant: MR. P. VEERA REDDYCounsel for the Respondents: --NONE APPEARED--The Court made the following:
JUDGMENT:
This appeal is by the plaintiff against the concurrent judgments of both the Courts below wherein the plaintiff’s suit, being O.S.No.433 of 1994, for injunction was dismissed under judgment dated 31.08.2004.
2.       While the plaintiff claims to be in possession of the suit schedule property and sought perpetual injunction against the defendants,
the defendants disputed the plaintiff’s title as well as possession.
In order to prove possession, the plaintiff has strongly relied upon Ex.A6, the order of the Mandal Revenue Officer dated 16.07.1992 whereunder he claimed that …
Post a Comment
Read more

Whether the lower appellate Court was legally justified in driving the plaintiff to file a suit for declaration of title within three months and limiting the permanent injunction granted by the trial Court for the said three months, after having found that the plaintiff was in possession of the suit land? = yes ; When declaration of title arise = when bare injunction is sufficient = Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."

reported in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=9956
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            
Second appeal No.1212 of 1999

05-06-2013

Vegendla Vijayalakshmi and two others......Appellants



Gaddipati Naga Himabindu and seven others.... Respondents


Counsel for the Appellants:Sri N.SreeRamaMurthy

Counsel for Respondents: Smt.K.Lalitha


<Gist :

>Head Note:

?Cases referred:
1. 2004(2) ALD 786
2. AIR 1972 SC 2299
3. 2004(2) ALD 31 (SC)
4. (2008) 4 SUPREME COURT CASES 594    

JUDGMENT:


        Three of the legal representatives of the deceased plaintiff are the
appellants herein.
Subject matter of the suit is an extent of Ac.2.42 cents of
dry land in Nidubrolu village of Guntur District.
Originally the suit land
belonged to one Pamulapati Sundaramma, who died on 22.02.1991.
The first
defendant is daughter of the defendants 2 and 3.
The third defendant is
daughter of the 4th defendant.
Late Sundaramma is wife of brother of the plaintiff and t…
Post a Comment
Read more

Enhancement of compensation for Rs.75,000/- in which lower court refused to enhance the market value from Rs.41,000/- per acre = escalation of 10% in the market value for each year= If Ex.A.1 which is dated 21.03.1986 under which Ac.0-50 cents of land was sold at the rate of Rs.50,000/- per acre and even an escalation of 10% in the market value for each year, the market value can be arrived at Rs.73,000/- and odd per acre. ; Deduction of 1/3 rd rejected = deduction of 1/3rd would be warranted only when the claim of land owners is based on square yard basis, in which case before they can offer the land for sale they are required to expend money and develop the land, and in that process there is an element of deduction in the saleable land and also expenditure involved in development. However, this is not the case where the land is being acquired on acreage basis by paying lump sum compensation on per acre basis. In the light of the above discussion, we reject the contention of the learned Government Pleader that there needs to be 1/3rd deduction considering the fact there is general spiralling of land prices, we feel it just and reasonable to fix the market value payable as Rs.75,000/- per acre.= It is needless to mention that the appellant would be entitled to all statutory benefits including interest on solatium and additional market value.

reported in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10152
HON'BLE SRI JUSTICE K.C. BHANU AND HON'BLE SRI JUSTICE CHALLA KODANDA RAM                

APPEAL SUIT No.361 OF 2002    

18-07-2013

Smt. Tangirala Radhakrishnamma...Appellant-Claimant

The Revenue Divisional Officer,Tenali, Guntur District  ...Respondent-
Referring Officer

Counsel for the appellant: Sri V.S.R. Anjaneyulu

Counsel for the respondent: Learned Government Pleader for Appeals

<Gist:

>Head Note:

?Cases referred:  Nil

HON'BLE SRI JUSTICE K.C. BHANU    
AND
HON'BLE SRI JUSTICE CHALLA KODANDA RAM          

APPEAL SUIT No.361 OF 2002    

JUDGMENT:- (per Hon'ble Sri Justice Challa Kodanda Ram)  


This Appeal has been filed by the appellant-Claimant challenging the Common
Order and Decree dated 30.06.2000 of the learned Principal Senior Civil Judge,
Tenali, passed in L.A.O.P. Nos.13 and 14 of 1995.  The impugned Order and Decree
was passed on a reference to the Court under Section 1…
Post a Comment
Read more

Section 61 of the AP Cooperative Societies Act, 1964 (for short, 'the Act')= As the borrower committed default in payment of the loan to the Bank, the Bank filed ARC.No.21 of 2000 against the borrower and the guarantor of his loan for recovery of Rs.22,73,848/- with interest from 01-01-2000 thereon under Section 61 of the AP Cooperative Societies Act, 1964 (for short, 'the Act') before the Divisional Cooperative Officer, Golconda Division/Arbitrator (for short, 'the arbitrator') for recovery of the outstanding loan. = Attachment before judgment in proceedings under the Act are governed by Section 73 of the Act r/w Rule 54 of the Rules framed under the Act. Section 73 of the Act states as follows : "73. Attachment of property before decision or order : - If the Registrar is satisfied on application, report, inquiry or otherwise that any person with intent to delay or obstruct the enforcement of any decision or order that may be made against him under the provisions of this Act, -- (a) is about to dispose of the whole or any part of his property; or (b) is about to remove the whole or any part of his property from the jurisdiction of the Registrar, the arbitrator or liquidator, as the case may be, he may unless adequate security is furnished direct the attachment of the said property, and such attachment shall have the same effect as if made by a competent Civil Court." Rule 54 states : "54. Mode of making attachment before judgment under Section 73 of the Act : - (1) Every attachment of property directed under Section 73 of the Act shall be made in the same manner as provided in Rule 52. (2) Where a claim is preferred to property attached under sub-rule (1), such claim shall be investigated in the manner and by the authority specified in Rule 52. (3) A direction made for the attachment of any property under Section 73, may be withdrawn by the Registrar of the district - (a) when the party concerned furnishes the security required, together with security for the costs of the attachment; or (b) when the liquidator determines under clause (c) of sub-section (1) of Section 66 of the Act that no contribution is payable by the party concerned; or (c) when the Registrar passes an order under sub-section (1) of Section 60 of the Act that the party concerned need not repay or restore any money or property or any part thereof with interest or contribute any sum to the assets of the society by way of compensation; or (d) when the dispute referred to in sub-section (1) of Section 61 of the Act has been decided against the party at whose instance the attachment was made. (4) Any attachment made under sub-rule (1) shall not effect the rights existing prior to the attachment, of persons not parties to the proceedings in connection with which the attachment was made, nor bar any person holding a decree against the person whose property is attached from applying for the sale of the property under attachment in execution of such decree. (5) Where the property is under attachment by virtue of the provisions of this rule and a decree is subsequently passed against the person whose property is attached, it shall not be necessary upon an application for execution of such decree to apply for reattachment of the property." 28. Rule 52 deals with procedure in execution of decrees, decisions or orders and sub Rule 21 (a) thereof deals with claims preferred/objections made to attachment of property made under sub Rule 11 after decree/decision/order. Rule 52 (21) (a) states: "(21) (a) Where any claim is preferred or any objection is made to the attachment of any property under this rule on the ground that such property is not liable to such attachment, the officer shall investigate the claim or objection and dispose it of on the merits." 29. A reading of the above provisions indicates that claim petitions to raise attachment before award are governed by Rule 54 and claim petitions to raise attachments after award are governed by Rule 52 (21) (a) of the Rules. Although sub-Rule (2) of Rule 54 states that a claim petition to raise attachment before award is to be investigated in the manner and by the authority specified in Rule 52, sub Rule (3) of Rule 54 specifies in what circumstances an attachment of property made before award/judgment under Section 73 may be withdrawn. Only in the circumstances mentioned in Clauses (a) to (d) of sub Rule (3) of Rule 54, attachment made before judgment may be withdrawn. In view of this, when an application to raise attachment before judgment is made under Rule 54 by a third party to an arbitration under Section 61 objecting to such attachment, it cannot be decided on merits as if it was an attachment after judgment applying sub Rule (21) (a) of Rule 52. In view of sub Rule (2) of Rule 54, only the manner of investigation into the claim can be done as specified in Rule 52 but the disposal of the claim to raise attachment before judgment can only be done as per sub Rule (3) of Rule 54. 30. But a perusal of the order dt.28-07-2004 in claim petition No.1/2001 in A.R.C.No.21 of 2000 indicates that the Arbitrator, without noticing the provisions of Rule 54 (3), followed Rule 52 (21) (a) and adjudicated the claim petition on merits instead of considering whether or not the attachment before judgment can be raised as per Clauses (a) to (d) of Rule 54 (3). The Arbitrator appears to have been swayed by the fact that the agreement of sale is prior in point of time to the mortgage in favour of the Bank and so it would prevail over the same. In taking such a view, the arbitrator went into the following issues: The parties have also stated that the agreement holders have filed O.S.No.9 of 2003 before the II Additional Chief Judge, City Civil Courts, Hyderabad for specific performance of the agreement of sale dt.28-02-1998 against the borrower and they have also impleaded the Bank therein and the said suit is pending.= (i) whether the agreement of sale dt.28-02-1998 in favour of the agreement holders is true and valid, (ii) whether any consideration was paid to the borrower by them, (iii) whether the agreement holders were in lawful possession of the property and (iv) whether the claim petition is maintainable in view of the provisions of the Transfer of Property Act, 1882. 31. In my opinion, considering the language of Rule 54, it was impermissible for the Arbitrator to have gone into issues (i) to (iii) and these issues could only be decided in O.S.No.9 of 2003 where the claim for specific performance of the agreement of sale dt.28-02-1998 made by the agreement holders against the borrower is being decided. It was also not permissible for the Arbitrator to go into issue (iv) as that issue could have been gone into only if it was a case of attachment after judgment to which Rule 52 (21) (a) applies.= This is because at present there is only attachment before judgment under Section 73 of the Act r/w Rule 54 (1) and as per sub Rule (4) of Rule 54, such attachment will not affect the rights existing prior to attachment, of persons not parties to the proceedings in connection with which the attachment was made, nor bar any person holding a decree against the person whose property is attached from applying for sale of the property under attachment in execution of such decree. Therefore it is clear that the order dt.11-05-2000 passed by the Arbitrator in A.R.C.No.21 of 2000 does not affect the rights of the agreement holders who are claiming interest in the property under the alleged agreement of sale dt.28-02-1998. = Both the arbitrator and the tribunal have not taken note of Rule 54(4) of the above Rules. Moreover, the agreement holders are admittedly strangers to the loan transaction between the Bank and the borrower. So in a proceeding between the borrower and the Bank initiated under S.61 of the Act, such persons are not proper or necessary parties merely because they claim to have an interest in the property mortgaged by the borrower to the Bank. Rule 54(4) clearly protects the interest of the agreement holders. Thus their orders are vitiated by error apparent on face of record. So W.P.No.13216/2009 is also allowed and the order dt.25.4.2008 in CTA No.66/2007 of the Tribunal confirming the order dt.24.3.2007 in I.A.No.5/2006 in ARC No.21/2000 of the arbitrator is set aside. 34. Accordingly, W.P.No.21151 of 2008, W.P.No.23718 of 2008 and W.P.13216/2009 are allowed. No costs.

reported in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10157
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO          

W.P.Nos.21151 of 2008

23-07-2013

The A.P.Mahesh Co-op. Urban Bank and others....Petitioner.

1.The Divisional Co-operative Officer, Golconda and others......Respondents.

<GIST:

>HEAD NOTE:  

Counsel for the petitioner-Bank:Sri Muralinarayan Bung and Sri V.Srinivas,

Counsel for the 1st respondent:Learned Government Pleader

^Counsel for the respondents 2 to 6 :   Sri M.R.K.Chakravarthi, Advocate
    representing Sri M.V.Durga Prasad
?Cases referred

THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO          

W.P.Nos.21151, 23718 of 2008 & 13216 of 2009  

COMMON ORDER :    


        As common issues arise in these writ petitions, they are being disposed of
by this common order.
2. One C.Nageswara Rao (for short, "borrower") owned a house bearing No.8-3-
967/92 situated at Salivahana Nagar, Srinagar Colony, Hyderabad.
He created an
equit…
Post a Comment
Read more