HON’BLE SRI JUSTICE A.GOPAL REDDY CRP No.5441/2006 DT.18-6-2010 Kuntsam Rama Devi …Petitioner V. 1. Chittuluri Raja Raj and others ..Respondent The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY CRP No.5441/2006 ORAL ORDER: Third party to the execution proceedings on the file of Senior Civil Judge, Pithapuram filed a claim petition in EA No.125/2004 in EP No.36/2003 in OS No.11/2002 under Section 47 CPC to delete the petition schedule property from the EP schedule property. On dismissal of the said EA, by the Senior Civil Judge, Pithapuram by his order dt. 8-9-2006, the petitioner-third party filed this revision petition. The petitioner who is a third party and the fourth respondent herein are sisters and they are the daughters of the second respondent (first Judgment Debtor). The third respondent who is the brother of the petitioner and son of the second respondent is the 2nd Judgment Debtor The first respondent filed OS No.11/2002 against the respondents 2 and 3 (judgment debtors 1 and 2) based on a registered mortgage deed dt. 15-2-2000 executed by both of them after receiving an amount of Rs.1,00,000/- as loan from the first respondent. Respondents 2 and 3 contested the mater and ultimately a preliminary decree was passed and a final decree was passed in Lok Adalath. In spite of the award passed by the Lok Adalath, the amount has not been paid. The first respondent- decree holder filed the above EP for execution of the decree. JDRs contested EP by filing their objections. The EP was ordered for sale of the mortgaged property in EP No.36/2003 in OS No.11/2002. Further, it appears that the judgment debtors also borrowed a sum of Rs.1,00,000/- from Pasumarthi Surya Prabhakara Rao and the debt was also discharged. At that stage, the petitioner filed the above claim petition stating that the fourth respondent herein filed a suit for partition in OS No.16/2003 and obtained an award from the Lok Adalath without making any provision for discharge of the mortgage debt. To prove her case, the petitioner examined P.Ws.1 and 2 and got marked Exs.A-1 and A-2. On behalf of the first respondent, R.W.1 was examined, but no documents were marked. The petitioner herself examined as P.W.1. She deposed in her cross-examination that she could not say the door number and boundaries of the petition schedule property that fell to her share in the partition. Similarly, she could not say the extent and how the suit was decreed and how the final decree was passed in the partition suit in OS No.16/2003. P.W.2, who is the maternal uncle of P.W.1 and respondents 3 and 4 and brother-in-law of the second respondent, deposed in his cross-examination that the second respondent and his children partitioned their property in his presence in August or September, 2003 but no document was executed evidencing partition at that time. He further admitted that the second respondent agreed for partition of the properties and one month thereafter partition was effected. The executing court after taking consideration the admissions made by P.Ws.1 and 2 in their evidence dismissed the claim petition holding that the petitioner is not entitled to any share in the property observing that if at all the partition was effected as deposed by P.W.2, what made the fourth respondent to file the suit for partition is not explained. As per the plan annexed to the award dt.27-9-2003 passed in IA No.973/2003 in OS No.16/2003 on the file of Junior Civil Judge’s Court, Pithapuram extent of ‘A’ to ‘D’ marked portions are 43.68; 47.79; 20.56; and 29.29 sq.yards were allotted to the fourth respondent, petitioner, third respondent and second respondent respectively. The father and the brother of the petitioner were given less share than the petitioner and her sister. Partition is an unequal partition without assigning any reasons, which itself shows that it is not a genuine partition and it was brought into existence to avoid the liability of the second respondent. Ex.A-2, which is the certified copy of the final decree, is an incomplete document though copies of the schedule and plan are annexed to Ex.A-2, no such documents were annexed to Ex.A-2. The executing court further held that the petitioner could not prove that the property for which partition was effected before the Lok Adalath is the ancestral property of her father and the claim petitioner and the fourth respondent having shares in the said property, partition suit filed by the fourth respondent appears to be a collusive one to defraud the creditors’ and the present petition filed was a collusive one. Sri S. Subba Reddy, learned counsel for the revision petitioner contends that when in the petition filed by the petitioner it is specifically stated that EP schedule property is the ancestral property in which respondents 2 to 4 are having equal shares, the decree holder who filed counter has not denied the said fact, therefore, what all stated by the petitioner is deemed to have been admitted by the respondents. When a suit for partition was filed and it was decreed allotting 1/4th share to the petitioner, fourth respondent and Judgment Debtor Nos.1 and 2, sale cannot be proceeded with for recovery of the amount due as per the award passed by the Lok Adalath in OS No.11/2002. I do not see any merit in the contentions advanced by the learned counsel for the petitioner. Except collusive award obtained from the Lok Adalath, Pithapuram in IA No.973/2003 in OS No.16/203 filed by the fourth respondent and also final decree under Exs.A-1 and A-2, no piece of paper has been filed to show that the suit schedule property is an ancestral property in hands of Judgment Debtor No.1. When the fourth respondent filed suit for partition, it is unimaginable that she will not file any claim claiming right in the property. When the petitioner who is the defendant in the above suit examined herself as P.W.1 deposed that she could not say the door number, extent and boundaries of the petition schedule property; and who filed the petition and against whom it was filed. The same would clearly disclose that it is Judgment Debtor Nos.1 and 2 manipulated the above consent decree in the name of the fourth respondent and set up the petitioner as a claim petitioner to stop the sale as a last resort. P.W.2 admitted in his cross- examination that the second respondent and his children partitioned their property in his presence in August or September, 2003. In that view of the matter, filing of suit for partition in OS No.16/2003 and parties consenting for obtaining consent award from the Lok Adalath does not arise. In view of the aforesaid circumstances, I do not find any illegality or irregularity in the impugned order passed by the executing court dismissing the claim petition warranting interference of this court. The Civil Revision Petition is accordingly dismissed. No costs. __________________ A. GOPAL REDDY, J Date:18-6-2010 kmr