THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No. 2312 OF 2013 Dated:11-07-2014 Between:
B. Ashok
... PETITIONER
AND
M. Bhadraiah and two others
.. RESPONDENTS
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 2312 OF 2013 ORDER:
The petitioner filed O.S No. 3897 of 1984 in the Court of VI Junior Civil Judge, City Civil Court, Hyderabad for recovery and possession of the suit schedule property against the 2nd respondent herein. After a prolonged litigation up to the Supreme Court, the suit came to be decreed and the decree assumed finality. Thereafter, the petitioner filed E.P No. 13 of 2010 for execution of the decree. The 1st respondent who is the husband of the 2nd respondent filed the claim petition being E.A No. 11 of 2013 under Rules 97 and 101 of Order XXI CPC asserting rights vis-à-vis the property. In that claim petition, the 1st respondent filed E.A No. 39 of 2013 under Rule 1 (2) and 21 (1) of Order XVI CPC with a prayer to issue summons to the petitioner for cross examination, on his pleadings. The 1st respondent pleaded that when the matter was pending before the Supreme Court, the petitioner got his name (1st respondent’s name) deleted and to avoid any cross examination in this behalf, the petitioner is not entering the box. The petitioner opposed the application by filing counter. He stated that it is for the 1st respondent to prove his case as though E.A No. 11 of 2013 is a separate suit and he cannot compel the decree holder. The trial Court allowed the E.A through its order dated 22-04-2013. Hence, this revision.
Heard Sri N. Chandradhar Rao, learned counsel for the petitioner and Sri Kowturu Vinaya Kumar, learned counsel for the 1st respondent.
The decree passed in favour of the petitioner herein in O.S No. 3897 of 1984 assumed finality with the judgment of the Supreme Court that arose out of it. It is thereafter, that the petitioner filed the E.P for execution of the decree.
At the stage of delivery of possession of the property, the 1st respondent came forward with a claim petition under Rules 97 and 101 of Order XXI CPC. The mandate under Rule 58 as well as Rules 97 and 99 of Order XXI is that the applications filed under those provisions must be decided as though they are independent suits. Therefore, it is for the 1st respondent to prove his case.
Normally, the applications under those provisions are filed by the persons who are strangers to the litigation. In the instant case, the 1st respondent is none other than the husband of the judgment debtor, the 2nd respondent. Added to that, it is he who deposed as a witness on behalf of the 2nd respondent. It needs to be seen as to how far such a person can maintain an application under Rules 97 and 101 of Order XXI CPC.
When the burden squarely lies upon the petitioner to prove his case, it is just ununderstandable as to why he insists on summoning of the petitioner herein. For all practical purposes, he wants the petitioner herein to make out a case. If the 1st respondent is of the view that failure of the petitioner herein to figure as a witness before the executing Court could be helpful to him, he can certainly derive the benefit. Just as a plaintiff in a suit cannot compel the defendant to figure as a witness, a claimant in an application under Rules 58 and 97 of Order XXI CPC cannot compel the decree holder to figure as a witness. Ultimately, it is for the decree holder to choose what evidence to adduce depending upon the purport of the evidence of the third party claimant. The order passed by the executing Court is erroneous and runs contrary to the very scheme of trial of suits in execution petitions.
The C.R.P is accordingly allowed and the order under revision is set aside. Since this Court finds that there are no bonafides on the part of the 1st respondent for filing such frivolous petition, costs of Rs.10,000/- are imposed on him. The costs shall be paid within four weeks and unless the costs are paid, the executing Court shall not proceed with E.A No. 11 of 2013. If the default further subsists, it shall be under an obligation to proceed with the E.P.
The miscellaneous petitions filed in this revision shall also stand disposed of.
L. NARASIMHA REDDY, J
11h July, 2014 ks