HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.2882 of 2007 Date: 23-9-2011 Between Cherukuri Prasuna and another … Petitioners/Appellants/ Respondents 2 and 3/Plaintiffs and Cherukuri Narayana and another … Respondents HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.2882 of 2007 Order: Aggrieved by the judgment and decree, dated 02-3-2007, passed in C.M.A.No.47 of 2004 on the file of the II Additional District Judge, Ongole, Prakasam district, confirming the order and decretal order, dated 23-8-2004 made in I.A.No.504 of 1999 in I.A.No.601 of 1998 in O.S.No.98 of 1992 on the file of the Senior Civil Judge, Parchur, the present civil revision petition is filed. 2. The petitioners herein are the appellants/plaintiffs, the 1st respondent is a 3rd party petitioner and the 2nd respondent is the defendant in the suit before the trial Court. 3. For the sake of convenience, the parties herein are referred to as they are arrayed in the trial Court. 4. The 3rd party petitioner filed application I.A.No.504 of 1999 in I.A.No.601 of 1998 in O.S.No.98 of 1992 under Order XXI, Rule 97 read with Section 151 of CPC against the defendant and plaintiffs, and the trial Court allowed the said application by order dated 23-8-2004. Being aggrieved, the plaintiffs filed C.M.A.No.47 of 2004 on the file of the first appellate Court. The first appellate Court also, after due enquiry, negatived the contention of the plaintiffs and dismissed the appeal holding that the appeal is maintainable in law because Order XXI, Rules 103 and 104 of CPC provides right of appeal against the orders passed in interlocutory applications filed under Order XXI, Rule 97 of CPC. Being aggrieved, the present civil revision petition is filed. 5. The learned counsel for the petitioners-plaintiffs mainly urged that the application under Order XXI, Rule 97 of CPC is not maintainable unless parties initiate execution proceedings. Accordingly, he urged that in the present case, no execution proceedings were initiated by either party hence the impugned judgment is not maintainable. The learned counsel has also placed reliance on a judgment of the Hon’ble Supreme Court in Shreenath v. Rajesh[1]. 6. Learned counsel for the 1st respondent-3rd party petitioner while supporting the orders of both the Courts below, urged that the court should exercise inherent power to modulate its procedure and in an appropriate case, inherent power is to be exercised though not in routine but sparingly to prevent abuse of the process of the court or fraud on the court or to meet the ends of justice. 7. Now, the point for consideration is: Whether the impugned judgment passed by the first appellate Court is sustainable ? 8. Point:- The brief averments in the Affidavit of the 1st respsondent-3rd party petitioner are as follows: The 3rd party petitioner is the absolute owner of Item Nos.1 and 2 of the petition schedule property. The defendant on behalf of his minor children i.e., the plaintiffs 1 and 2 sold Item Nos.1 and 2 of the petition schedule property to the 3rd party petitioner for a sum of Rs.30,000/- under an agreement of sale, dated 19-9-1986, to discharge their family debts. Thereafter, he filed the suit O.S.No.134 of 1989 on the file of Sub Court, Chirala, for specific performance of contract of sale against the defendant and plaintiffs 1 and 2, and the same was decreed on 25-4-1990. Accordingly, a registered sale deed was executed by the Court on 21-01-1993. Since then, he has been in peaceful possession and enjoyment of the said property and mutation was also effected in the Revenue records. Thereafter, he also filed suit O.S.No.110 of 1997 for perpetual injunction against the defendant on the file of the Principal Junior Civil Judge, Parchur, and the said court granted injunction in his favour. He came to know that the plaintiffs 1 and 2 filed suit O.S.No.98 of 1992 on the file of the trial Court in collusion with their father (defendant) for partition and separate possession of the schedule property and the said suit was decreed ex parte and that they filed an application I.A.No.601 of 1998 for passing a final decree in the suit and an Advocate-Commissioner was appointed to get the suit properties partitioned. Hence, the 3rd party petitioner filed the present application I.A.No.504 of 1999. 9. In order to prove the relief sought for in the interlocutory application filed by him, the 3rd party petitioner was examined himself as P.W.1 and got marked Exs.A-1 to A-6. No oral or documentary evidence was let in on behalf of either the defendant or the plaintiffs 1 and 2. 10. The contention of the learned counsel for the petitioners- plaintiffs, as already stated, is that the provisions under Order XXI, Rule 97 of CPC has no application as there was no antecedent debt and there was no legal necessity for the defendant to sell the schedule property. 11. It is an admitted fact that the 1st respondent herein is the 3rd party petitioner and the petitioners herein i.e., the plaintiffs 1 and 2 filed suit O.S.No.98 of 1992 on the file of the trial Court against their father for partition of the suit schedule property and the said suit was decreed. Thereafter, the plaintiffs filed I.A.No.601 of 1998 for passing of a final decree. Later, an Advocate-Commissioner was appointed and a final decree was passed on 02-11-2004. The present interlocutory application under Order XXI, Rule 97 of CPC was filed by the 3rd party petitioner claiming that he purchased Items 1 and 2 of the petition schedule property under an agreement of sale dated 19-9-1986, on which he filed a suit in O.S.No.134 of 1989 and the same was decreed on 25-4- 1990. Pursuant to the said decree, a registered sale deed was executed on 21-01-1993. 12. It is the contention of the plaintiffs 1 and 2 that the suit schedule properties are joint family properties and there was no legal necessity for their father (defendant) to sell the same. 13. As seen from the record, a decree was obtained by the plaintiffs 1 and 2 in O.S.No.98 of 1992 against their father (defendant) for partition of the suit schedule properties and that too, it is an ex parte decree. Moreover, it was subsequent to the decree made in O.S.No.134 of 1989 obtained by the 3rd party petitioner. As the 3rd party petitioner came to know about passing of the final decree in favour of the plaintiffs 1 and 2, he came forward with the present application I.A.No.504 of 1999 to safeguard his interest on the suit schedule property, which he got under a decree in O.S.No.134 of 1989. 14. The plaintiffs 1 and 2 did not raise any objection for the aforesaid decree in O.S.No.134 of 1989. Even in the suit filed by them for partition i.e., O.S.No.98 of 1992, they did not cite the 3rd party petitioner as one of the defendants. As he is a bona fide purchaser of Items 1 and 2 of the suit schedule properties in O.S.No.134 of 1989 for a valuable consideration and pursuant to the said decree, a registered sale deed was also executed by the trial Court, the 3rd party petitioner is empowered to file the present interlocutory application under Order XXI, Rule 97 of CPC. Having regard to the special circumstances of the case on hand, both the Courts below are justified in granting the relief sought for by the 3rd party petitioner in the application filed under Order XXI, Rule 97 of CPC. Therefore, the application in I.A.No.504 of 1999 in I.A.No.601 of 1998 in O.S.No.98 of 1992 is maintainable and accordingly, the findings of both the Courts below need no interference. 15. Accordingly, the civil revision petition is dismissed, confirming the judgment under revision. No costs. ___________________ K.S.APPA RAO, J. 23rd September, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.2882 of 2007 23rd September, 2011. (Ak) [1] AIR 1998 SC 1827