IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY C.M.S.A.NO : 69 of 2009 Between: Chimirala Satish Kumar ..... PETITIONER AND Talluri Seetaravamma and two others. .....RESPONDENTS THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.M.S.A. No.69 of 2009 O R D E R: This Civil Miscellaneous Second Appeal is directed against the judgment and decree dated 11-11-2009 passed in A.S.No.244 of 2009 on the file of the IV Additional District Judge, Guntur, whereby and whereunder, the learned Additional District Judge dismissed he appeal filed under Order XLI Rule 1 and Section 96 CPC. 2. The background facts in a nutshell leading to filing of this Civil Miscellaneous Second Appeal by Ch.Satish Kumar are that Talluri Seetaravamma filed a suit being O.S.No.329 of 1996 for recovery of the possession of the suit schedule property. Her case is that Chimirala Koti Veeraiah, grandfather of Satish Kumar, executed a sale deed in her favour. Koti Veeraiah entered appearance in the suit and filed written statement admitting the sale of the suit schedule properties. His son Chimirala Anil Kumar contested the suit by filing written statement. Chimirala Anil Kumar also filed a suit being O.S.No.193 of 1999 against Talluri Seetaravamma and Talluri Krishna Murthy seeking permanent injunction. Koti Veeraiah died pending the suit. Ultimately, the suit filed by Talluri Seetharavamma ended in decree and whereas the suit filed by Chimirala Anil Kumar ended in dismissal. The decree holder, Seetaravamma, filed E.P.No.35 of 2008 for recovery of the possession of the suit schedule property. Then, Satish Kumar, who is the son of Chimirala Anil Kumar, filed application under Section 47 and Section 151 CPC seeking declaration that he is in possession and enjoyment of the petitioner schedule property as per the terms of the will executed by Koti Veeaiah and that the execution proceedings initiated by Seetharavamma against Anil Kuamr are not maintainable under law. 3. Satish Kumar, hereinafter referred to as ‘the claimant’ got examined himself as P.W.1 besides examining three more witnesses as P.Ws.2 to 4 and marked Exs.A-1 to A-3. Seetharavamma, herein after referred to as ‘decree holder’ got examined herself as R.W.1 and marked three documents as Exs.B-1 to B-3. 4. A particular reference is required to be made at this juncture to Ex.B-3-Certified Copy of written statement filed by Koti Veeraiah during his lifetime, wherein Koti Veeraiah admitted of his executing a sale deed in favour of Talluri Seetharavamma. The executing Court formulated the following points for consideration: 1. Whether the petitioner is entitled for a declaration that he is in possession and enjoyment of the petition schedule property in terms of the alleged will executed by Chimirala Koti Veeraiah in favour of D.Hr.? 2. Whether the execution proceedings against Chimirala anil Kumar the 1st J.Dr. are maintainable? 5. The executing Court, on considering the evidence brought on record and on hearing the counsel appearing for the parties, held both the issues in favour of the decree holder and accordingly dismissed the petition filed by the claimant by order dated 17-06-2009. The said order came to be challenged by the claimant by filing an appeal being A.S.No.244 of 2009 before the IV Additional District Judge, Guntur. The learned Additional District Judge, on re- appreciation of evidence brought on record, and on hearing the counsel appearing for the parties, did not find any valid ground to interfere with the judgment passed in E.A.No.78 of 2008 and accordingly, dismissed the appeal by judgment dated 11-11-2009. Para 5 of the judgment passed in A.S.No.244 of 2009 reads as hereunder: “Now as could be seen from the record, after the death of Kotiveeraiah, his son Anil Kumar that is father of the petitioner was brought on record as legal heir who has not urged before the court about the existence of the Will and disclaimed to be legal heir. Now indisputed fact is that Koti Veeaiah himself has executed Ex.B-2 sale deed on 09-02-1996. In other words, even prior to the alleged Will, Koti Veeraiah himself sold the property. The claim by petitioner is not only vexatious but obnoxious. In fact, even if the Will is earlier to the sale deed, the Will shall come into force on the death and if the property was already sold by the owner, the sale cannot be superceded. This is typical and classic example of abuse of process of law and in fact, the trial Court should not have been entertained the application itself in the first instance. Yet, the trial Court, far beyond the scope and necessity, at length considered the version of the parties, about the validity of the Will, which is, strictly not warranted and further discussion in the petition is nothing but wasting of valuable time of the Court.” The judgment passed in the appeal in A.S.No.244 of 2009 is impunged in this Civil Miscellaneous Second Appeal. 6. Heard the learned counsel appearing for the appellant and perused the order impugned in this appeal as well as the order passed by the executing Court. 7. Learned counsel appearing for the appellant submits that the lower appellate Court has not considered the evidence brought on record and also the scope of Order 21 Rule 97 CPC and thus, the order impugned in this Civil Miscellaneous Second Appeal is not sustainable. The learned counsel tries to make out a legal issue with regard to maintainability of the application under Order 21 Rule 97 CPC by the obstructer himself. In support of his submissions, reliance has been placed on the decision of this Court in Arif Abdul Ghani and others V. S.Maheshwar Rao and others[1]. The contention of the learned counsel appearing for the appellant appears to be impressive on the first blush, but on close scrutiny of the material placed before me, I do not detain myself long to dispel the same. It is to be noted that the decree holder filed the suit in the year 1996, based on the sale deed, which has been marked as Ex.B-2, executed by Koti Veeraiah. The said Koti Veeraiah, through whom the claimant is claiming the property, filed written statement admitting the sale in favour of Talluri Seetaravamma. The written statement has been marked as Ex.B-3 before the executing Court. Even if the will propounded by the claimant is found to be true, he will get the properties left by the testator-Koti Veeraiah and not the property which had already been sold and the sale of the properties has been accepted/admitted by the testator. 8. In the given facts and circumstances of the case, the finding recorded by the lower appellate Court is justified. There is no legal issue which is required to be adjudicated in this Civil Miscellaneous Second Appeal and accordingly the same is dismissed at the admission stage. There shall be no order as to costs. _____________________________ Justice B. Seshasayana Reddy 16th December, 2009. kvr [1] 1999 (4) ALT 306