THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P. No.4005 of 2011

16-09-2011

Amkumalla Subhashini

Kota Bramaramba & others

Counsel for the petitioner: Sri P. Nagendra Reddy

^Counsel for respondents

ORDER:

The 1st respondent filed O.S.No.125 of 1990 in the Court of Junior Civil Judge, Darsi, against the respondents 2 and 3, for the relief of declaration of title and recovery of possession of the suit schedule property, being an extent of 2 cents, in Sy.No.788 of Darsi. The suit was decreed on 17-09-2003. After the decree became final, she filed E.P.No.85 of 2003. The petitioner is the daughter of the 3rd respondent. Claiming rights under the will, said to have been executed by the original owner, Pothuluri Subbamma, the petitioner filed O.S.No.109 of 2008 in the Court of Senior Civil Judge, Darsi, against the respondents with a prayer to declare the decree dated 17-09-2003 in O.S.No.125 of 1990 as null and void and not binding upon her. It is also stated that an application filed by her to stay the operation of the decree in O.S.No.125 of 1990 was dismissed and C.M.A.No.25 of 2000 filed in the Court of V Additional District Judge, Ongole against the order in E.A. has been dismissed.

The petitioner filed an execution application in E.P.No.85 of 2003 in O.S.No.125 of 1990 under Rule 97 of Order 21 C.P.C., in the Court of Junior Civil Judge, Darsi, with a prayer to declare her rights, vis--vis the property and to record her objection. The Executing Court passed order dated 08-09-2011, rejecting the application, without numbering it. The same is challenged in this revision.

Sri P. Nagendra Reddy, learned counsel for the petitioner submits that a third party to a decree has every right to raise objection by filing application under Rules 58, 97 or 99 of Order 21 C.P.C., and the Executing Court was not justified in numbering the application.

The C.P.C. provides a detailed procedure to be followed for execution of decrees. Though the dispute in the context of execution of a decree is mainly between the decree- holder and the judgment-debtor, there are many instances where the rights of third parties are effected on account of the execution of a decree. In such a case, the Code provides for adjudication of the rights of third parties also, in the same execution proceedings. The necessity to file separate suits for this purpose is obviated. In fact, Section 47 and Rules 58 and 101 of Order 21 C.P.C., prohibit filing of separate suits for this purpose. Had the petitioner simply filed an application under Rule 97 and sought for adjudication of her rights without taking recourse to any other procedure, things would have been different altogether. Even according to her own pleadings in the application, it is evident that she filed O.S.No.109 of 2008 in the Court of Senior Civil Judge, Darsi, with a prayer to declare that the decree in O.S.No.125 of 1990 on the file of the Court of Junior Civil Judge, Darsum is not binding upon her. An application filed by her in O.S.No.109 of 2008 for stay of the execution of the decree in O.S.No.125 of 1990 was dismissed by the Court of Senior Civil Judge, Darsi, on merits. That order in turn was affirmed by the Court of V Additional District Judge, Ongole in C.M.A.No.25 of 2009. Rules 97 or 101 are silent as to whether an application filed by a third party for determination of his/her rights is barred, in case separate suit for that very purpose was instituted in a different Court. Notwithstanding the silence of the Rule, on this aspect, a party who had already instituted proceedings in a superior Court cannot be permitted to repeat the same exercise in the execution proceedings.

Entertaining of an application under Rule 97 of Order 21 C.P.C., in the circumstances mentioned above, would amount to scuttling further progress in the decree, which relief, two superior Courts in the hierarchy have specifically refused. If the petitioner was serious enough to pursue the remedy under Rule 97, she ought to have been mindful of the provision contained in Rule 101 against filing of a separate suit. Having filed a separate suit in a superior forum, the petitioner cannot file an application in the E.P. One of the settled principles of law is that, a person cannot be permitted to do indirectly, what he is prohibited from doing directly. The petitioner created a necessity for slight modification of the principle to the effect that, if a party has failed to achieve something through indirect means, he cannot be permitted to pursue that very remedy in another forum, directly also.

The Executing Court has taken correct view of the matter, and this Court is not inclined to interfere with the order under revision. The C.R.P. is accordingly dismissed.

There shall be no order as to costs.

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L. NARASIMHA REDDY, J.

Dt.16-09-2011.