THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.24598 of 2005 Between:
Lakshmisetti Venkateswara Rao PETITIONER AND
1. The Deputy Registrar, (Officer on Speical Duty), The Krishna Co- op, Central Bank Ltd., No.14, Machilipatnam, Krishna District, and others.
RESPONDENTS ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief.
“… to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents 1 and 2 in not entertaining the claim petition filed by the petitioner and confirming the sale and issuing the Sale certificate dated 07-07-2005 in favour of the sixth respondent as arbitrary, illegal, discriminatory, contrary to law and against the principles of natural justice and consequently direct the respondents 1 and 2 to entertain claim petition filed by the petitioner and dispose of the same in accordance with law…“
2. Heard Sri M.C. Acharyulu, learned counsel for the petitioner, Sri B. Adinarayana Rao, learned Standing Counsel for respondents 1 to 4, Smt. V. Hima Bindu, learned counsel for respondent No.5, and Sri P. Nagender Reddy learned counsel for respondent No.6 apart from perusing the material available on record.
3. According to the petitioner, he is the owner of the Mango grove admeasuring Ac.4.50 cents situated in R.S.No.191/2 of Pondugula Village, Mylavaram Mandal, Krishna District, which he got by virtue of a registered Will bearing document No.33/1999, dated 11.10.1999 executed by his grandfather. As per the petitioner, he has been in possession and enjoyment of the said lands and his grandfather filed O.S.No.678 of 1986 on the file of the Court of the I Additional District Munsif, Vijayawada and obtained perpetual injunction against the 5th respondent herein, which was confirmed in A.S.No.17 of 1990. He also filed a suit in O.S.No.1459 of 2002 on the file of the Court of Junior Civil III Additional Junior Civil Judge, Vijayawada for permanent injunction against the 6th respondent and obtained temporary injunction on 03.04.2003 in I.A.No.751 of 2002. It is further averred in the writ affidavit that the 5th respondent instituted O.S.No.940 of 2003 against the petitioner seeking permanent injunction and obtained temporary injunction and C.M.A.No.17 of 2003 filed by the petitioner on the file of the Court of the Senior Civil Judge, Nuziveedu, was allowed on 09.01.2004, and C.R.P.No.1180 of 2004 filed by the 5th respondent before this Hon’ble Court was dismissed confirming the orders passed by the learned Senior Civil Judge, Nuziveedu. The grievance, precisely, in the present writ petition is that the 2nd respondent herein issued a public auction notice dated 10.04.2005 proposing to sell the subject land by way of public auction for realisation of the loan amount said to have been advanced to the 5th respondent by the 3rd respondent; that the 2nd respondent did not accept the representation submitted by the petitioner, which prompted him to send a telegram, and also filed a claim petition on 18.06.2007; and that the respondent-authorities did not entertain the said claim petition. In the above said background the present writ petition has been filed complaining refusal to entertain the claim petition filed by the petitioner.
4. This Court on 18.11.2005 issued Rule Nisi and on 6.01.2006 this Court refused to grant any interim order by recording that the sale has already been confirmed and the sale certificate has been issued.
5. Responding to Rule Nisi issued by this Court, a counter affidavit is filed by respondents 1 and 2 stating that the sale was conducted on 17.04.2005 by the 2nd respondent and the same was confirmed on 30.05.2005 and the sale certificate was issued on 7.06.2005.
6. It is to be noted at this juncture that Rule 52 of the A.P. Cooperative Societies Rules, 1964 deals with the procedure in execution of decrees, decisions or orders. As per Rule 52 (14) an application to set aside the sale, needs to be made within 30 days from the date of sale of the immovable property. As per Rule 52 (14) (v) after the confirmation of any such sale, the Registrar shall grant a certificate of sale bearing his seal and signature to the purchaser. In the instant case, as per the material available on record, a sale certificate is also issued in favour of the 6th respondent-auction purchaser on 30.05.2005. As per Rule 52 (14) (vi) an order made under Clause (v) of the sub-rule is subject to an appeal under Section 76 of the Act within 90 days from the date of the order. As per the provisions of Section 76 of the A.P. Cooperative Societies Act, 1964 (for short ‘the Act’) any person or society aggrieved by any decision passed or order made under Section 71 of the Act, can file appeal before the Tribunal.
7. Even though a number of contentions have been advanced on behalf of the petitioner including the one touching the element of fraud, this court is not inclined to undertake a roving enquiry into the said disputed questions of fact, which is impermissible under Article 226 of the Constitution of India. It is also submitted by the learned counsel for the 6th respondent-auction purchaser that delivery of the property is also given to the 6th respondent. On the other hand, it is the submission of the learned counsel for the petitioner that the petitioners are in possession of the property.
8. For the aforesaid reasons, and having regard to the provisions of the Act and the Rules framed thereunder which are referred to above, and having regard to the nature of controversy in the writ petition, this writ petition is disposed of, permitting the petitioner to file an appeal under Section 76 of the Act r/w Rule 52 (14) (vi) of the Rules within a period of two months from the date of receipt of a copy of this order. If any such appeal is filed, the appellate authority shall consider the same in accordance with law within a period of three months thereafter, without reference to the limitation prescribed under the statute. Pending such exercise status quo obtaining as on today shall be maintained with regard to the property.
JUSTICE A.V. SESHA SAI.
25th June, 2014 Js.