IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1583 of 2006 Between: R. Rama Chandra Rao ... PETITIONER AND C.V. Hari Haran ... RESPONDENT ORDER: This revision is at the instance of the decree holder who had sought execution of the decree in E.P.No.44 of 2005 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. 2. In the said E.P. the respondent herein had filed E.A.No.114 of 2005 contending that the E.P. schedule property does not belong to the predecessor of the judgment debtor late Smt.Radha Hariharan and had sought stay of all further proceedings in E.P. till the decree holder establishes that the E.P. schedule property belongs to the estate of late Smt.Radha Hariharan. Under the impugned order the said application was allowed and all further proceedings in E.P. were stayed till the decree holder establishes the ownership of late Smt.Radha Hariharan. 3. Heard Sri P.V. Vidyasagar, learned counsel for the petitioner and Sri C. Raghu, learned counsel for the respondent. 4. Learned counsel for the petitioner has firstly drawn the attention of the Court to the decree passed in O.S.No.359 of 1999 dated 20-01-2005 by the learned II Senior Civil Judge, City Civil Court, Hyderabad wherein the suit filed by the petitioner-decree holder was partly decreed for Rs.1,43,170/- with future interest at 12% p.a., on Rs.90,000/- from the date of filing of the suit till the date of decree and thereafter at 6% p.a., on Rs.90,000/- from the date of decree till realization, against the estate of late Smt.Radha Hariharan in the hands of the defendant. The first defendant is the first judgment debtor in the present E.P. and he is resisting the execution on the ground that though he is the husband of late Smt.Radha Hariharan and that he is liable only to the extent of her estate devolving on him. It is contended that E.P. schedule property actually stands in the name of Smt.H.B. Vasantha Devi and in support of that encumbrance certificates for the years 1965-2000 were filed. Based on the aforesaid documents it was contended by the respondent- judgment debtor that the E.P. schedule property does not belong to late Smt.Radha Hariharan and consequently the petitioner is not entitled to execution until the ownership of late Smt.Radha Hariharan is established. As mentioned above the Court accepted the said contentions. The learned counsel for the petitioner further states that the decree itself was against the judgment debtors, which includes judgment debtor No.1 who has filed the present E.A.No.114 of 2005. It is also pointed out that pending suit there was an attachment of the very same E.P. schedule property in I.A.No.295 of 1999 and the said attachment became absolute after passing of the decree. He therefore contend that it is not open for the judgment debtor to now question the title of late Smt.Radha Hariharan and as a fact he has succeeded to the estate of late Smt.Radha Hariharan by mutating in his name as against the E.P. schedule property. 5. Mr.C. Raghu, learned counsel for the respondent contended that there is no evidence that late Smt.Radha Hariharan was the owner of the E.P. schedule property and as is evident from the Encumbrance Certificate for the year 1965-2000 the name of the owner is shown as that of Mr.H.B.Ravi under the guardianship of Smt.H.B. Vasantha Devi. He, therefore, contends that unless the petitioner establishes the title of late Smt.Radha Hariharan to E.P. schedule property further proceedings in E.P. cannot proceed and as such justifies the impugned order of the City Civil Court. 6. On considering all these rival contentions it is apparent that E.P. schedule property was attached pending decree and the attachment became absolute on passing of the decree. Further the Encumbrance Certificate relied upon by the respondent-judgment debtor relates to the entire property before the constructions were taken on it and flats were constructed. The E.P. schedule property is now Flat No.203, Air Bus Apartment, Himayatnagar and undoubtedly as is evident from the Municipal Tax and Receipts and extracts, the said flat stood in the name of late Smt.Radha Hariharan originally, and later her name was rounded of and judgment debtor No.1’s name was entered in the place of late Smt.Radha Hariharan as successor. 7. It was also placed before Executing Court that there are Encumbrance Certificates for the years 1990-1996 and 1996-2005 showing that the said E.P. schedule property belongs to late Smt.Radha Hariharan. Thus, by the Encumbrance Certificate dated 11-04-2005 relied upon by the judgment debtor relates to the entire property before constructions were taken upon it, and the Encumbrance Certificates produced by the petitioner relates to the E.P. schedule property itself. It was also brought to the notice of the Executing Court that there was a sale deed dated 29-03-1997 in the name of late Smt.Radha Hariharan. But it remained un- registered as stamp duty and penalty thereon was not paid. Subsequently, on payment of stamp duty and penalty on 30-05- 2005 the said sale deed is registered and released. Under Section 47 of the Registration Act, even if the registration of sale deed is later, it relates back to the date of execution and as such it cannot be said that late Smt.Radha Hariharan was not the owner of the E.P. schedule property. Since judgment debtor No.1 has admittedly succeeded to her estate and to the extent of devolution of interest is bound by the decree, the Execution Petition cannot be existed as contended by him. The Executing Court, therefore, committed error in thinking that the decree holder is required to establish the ownership of late Smt.Radha Hariharan before proceeding with E.P. The said conclusion of the Executing Court is not correct even on the documents produced by the petitioner before the Executing Court itself which are referred to as above, I am therefore, of the opinion that the impugned order is liable to be set aside and Executing Court is therefore, required to proceed further in the Execution Petition No.44 of 2005, in accordance with law. 8. The Civil Revision Petition is allowed accordingly. There shall be no order as to costs. ____________________________ VILAS V. AFZULPURKAR, J June 09, 2010. PN THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.1583 of 2006 June 09, 2010