IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL REVISION PETITION No.11 of 2003 Date:02.09.2011 Between: M.S.N. Charities, Kakinada, rep. By its Executive Officer, Kakinada .....Petitioner AND Dasam Veeramani Alias Gopu Veeramni and others. ....Respondents THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL REVISION PETITION No.11 of 2003 ORDER: 1. This Civil Revision Petition is filed under Section 115 of C.P.C against the order and decree dated 13.09.2002, passed in E.A.No.194 of 1989 in E.P.No.10 of 1989 in O.S.No.27 of 1979 by the Senior Civil Judge, Pithapuram, East Godavari District. 2. The Revision Petitioner herein is the Judgment Debtor in E.A.No.194 of 1989 in E.P.No.10 of 1989 in O.S.No.27 of 1979. The petitioner herein has filed the petition under Order XXI Rule 58 of C.P.C to raise the attachment over the schedule property. After due enquiry, the learned Senior Civil Judge, Pithapuram, under the impugned order, allowed the petition holding that the petitioner has title, possession to the petition schedule property and raised the attachment made on 10.09.1985. Being aggrieved by the same, the present C.R.P is filed. 3. The learned counsel for the petitioner raised several contentions questioning the impugned order of the trial court. It is mainly contended that the lower court ought to have seen that the 1st respondent/petitioner is not the owner of the property and she never in possession of the item No.1 of the suit schedule property and her claim is only a set up to defeat the decree passed in the suit and this petitioner filed E.P.No.53 of 1983 on the file of Senior Civil Judge Court, Kakinada and the same was transferred to Senior Civil Judge Court, Pithapuram and renumbered as E.A.No.24 of 1987 and the same was dismissed on merits on 21.4.1988 and the said order became final and that the second E.P.No.194 of 1989 in E.P.No.10 of 1989 is barred by the principles of resjudicata under Section 11 of C.P.C and that the petitioner is a close relative of the respondents 2 and 3 and the alleged document Ex.A.1 brought into existence to defeat the rights of the petitioner which is only a sham document and therefore, the order of the lower court is bad under law. 4. Now the point that arises for consideration is whether the order of the lower court is sustainable? 5. The petitioner’s case is that she is the absolute owner of the schedule property purchased under Ex.A.1, registered sale deed, dated 16.4.1977 and that she has been in exclusive possession and enjoyment of the sdame since the date of her purchase. The contention of the first respondent-Decree Holder is thata Ex.A.1, sale deed, is nominal and collusive document created to deprive him and that the petitioner filed similar claim petition in E.A.No.389 of 1986 in E.P.No.53 of 1983 (renumbered as E.P.No.24 of 1987) and the same was dismissed on 21.4.1988 on merits, and that the order in E.P.No.389 of 1986 has become final and the second petition in E.A.No.194 of 1989 in E.P.No.10 of 1989 is barred by the principle of res judicata under Section 11 of C.P.C. 6. Before remand, on behalf of the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.3 were got marked. After remand, P.Ws.4 to 6 were examined and Exs.A.4 to A.8 were got marked. R.W.1 was examined on behalf of the D.Hr. 7. The trial court has framed the following issues: 1. Whether the petition is barred by resjudicata? 2. Whether petitioner is the owner of the Item No.1-A of the petition schedule property i.e., the petition schedule property and whether the petitioner is entitled for prayer to raise the attachment? 8. PONT No.1: As seen from the record, the petitioner filed similar claim petitions in E.P.No.53 of 1983, which was renumbered as E.P.No.24 of 1987, and the same was dismissed on 21.4.1988 after due enquiry. Subsequently also, the petitioner filed E.A.No.194 of 1989 and the same was ended in dismissal on 25.6.1990. When the petitioner preferred the appeal before this Court against the said orders, this Court, while setting aside the finding with regard to the principle of res judicata, remitted the matter to the trial court for fresh disposal on merits without reference to the principle of res judicata. Therefore, the finding of the trial court, while answering issue No.1, is justified in view of the directions given by this Court. 9. PONT No.2: According to the contention of the petitioner, she is the owner of item No.1 of the petition schedule property under Ex.A.1. The husband and the father of the petitioner were examined as P.Ws.1 and 2 respectively. Ex.A.2 is the mortgage deed. Ex.A.1, sale deed, was executed by P.W.1, who is none other than the husband of the petitioner. P.W.2, the father of the petitioner, deposed that he is discharging the mortgage debt under Ex.A.2 as per the endorsement under Ex.A.3, dated 16.4.1977. P.Ws.3 and 5 are the attester and scribe of Ex.A.1 and they proved the genuineness of Ex.A.1, sale deed. As per the evidence, the marriage between the petitioner and P.W.1 was not performed on the date of Ex.A.1. As per Ex.A.1, the mortgage deed was executed in the year 1970 and the suit was filed in the year 1975. The schedule property was attached on 10.9.1985 in E.P.No.53 of 1983 (renumbered as E.P.No.24 of 1987), which was dismissed on 06.09.1988. In the meantime, the present E.P. was filed. Further, the schedule property was not attached before the judgment in the above E.P. Therefore, the property was only attached on 10.09.1985, whereas Ex.A.1 was dated 16.4.1977 by which date the suit was already decreed i.e., 15.4.1975. The Decree Holder has not moved the Court immediately even after the decree for attachment. He filed the execution application in 1983 by which date Ex.A.1 was already executed. Therefore, it cannot be said that Ex.A.1 is nominal and collusive document. 10. Therefore, it cannot be said that Ex.A.1 is a nominal and collusive document. Even as per the evidence of neighbours and as per the documentary evidence and Revenue Records, it is clear that the petitioner is in possession and enjoyment of the schedule property, from the date of Ex.A.1 registered sale deed. The DHr has raised all his pleas before the trial court and they were negatived observing that the decree holder was not diligent in prosecuting the case by filing the petition for attachment before the judgment. The contention of the decree holder can be accepted if the attachment is made prior to Ex.A.1 sale deed but it was only on 10.9.1985, eight years after Ex.A.1 sale deed. Therefore, in any view of the matter, as the sale deed is eight years prior to the attachment dated 10.9.1985, the impugned order is sustainable and I see no valid grounds to interfere with the finding of the Tribunal. Further more over, the present C.R.P., against the respondents 1 and 2 was dismissed for default on 15.4.2011. 11. It is represented by the learned counsel for the petitioner that the petitioner has filed an application before the Registry to restore the C.R.P as against the respondents 1 and 2 and the same was numbered as C.R.P.M.P.No.5106 of 2011. But no notices were ordered by the Registry. In view of the aforesaid observations, while dismissing the main C.R.P, no further order are necessary in the said C.R.P.M.P.No.5106 of 2011. 12. Accordingly, the Civil Revision Petition is dismissed. The attachment and stay, if any granted, during the pendency of the C.R.P are hereby vacated. There shall be no order as to costs. _________________ K.S.APPA RAO,J Date:02.09.2011. Gk THE HON'BLE SRI JUSTICE K.S.APPA RAO CIVIL REVISION PETITION No.11 of 2003 Date: 02.09.2011 Gk.