THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2466 of 2011 Date:10th November, 2011 Between: Jinka Gurunath S/o.Jinka Ravi ..... Petitioner AND 1.Kakumani Rama Devi W/o.Nageswara Rao & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2466 of 2011 ORDER: The Civil Revision Petition is directed against the order, dated 29.04.2011, passed in E.A.No.112 of 2011 in E.P.No.14 of 2005 in O.S.No.156 of 2003 on the file of the Senior Civil Judge, Proddatur, Kadapa District, whereby and whereunder the learned Senior Civil Judge dismissed the application filed under Section 5 of the Limitation Act, 1963, to condone the delay of 559 days in filing the petition to set aside the ex parte order, dated 08.07.2009 passed in E.P.No.14 of 2005. 2. Background facts, in a nutshell, leading to filing of this revision by the petitioner are: The 1st respondent herein filed O.S.No.156 of 2003 against the 2nd respondent for recovery of money. She moved I.A.No.783 of 2003 and got the properties of the 2nd respondent attached before judgment on 04.11.2003. Suit came to be decreed on 25.11.2003. The 1st respondent/decree holder filed E.P.No.14 of 2005 for sale of the attached properties for realization of the decretal debt. The 2nd respondent, who is the judgment debtor, filed objections pleading that he gifted the property to the petitioner herein on 28.01.2005. Before the Executing Court, the decree holder got herself examined as PW.1 and marked 8 documents as Exs.A1 to A8 and whereas, the judgment debtor got himself examined as RW.1. The Executing Court after considering the evidence brought on record and on hearing the counsel appearing for the parties, over-ruled the objections raised by the judgment debtor and ordered for sale of the E.P. schedule properties for realization of the decretal amount. For better appreciation, I may refer paras.4 to 7 of the order, dated 16.04.2008, passed in E.P.No.14 of 2008, which read as hereunder: “4. POINT:- As seen from the evidence of PW.1 and also Exs.A1 to A.8 the E.P. Schedule property belonged to the father of the respondent/judgment debtor who gifted E.P. schedule property in favour of his son i.e., respondent/judgment debtor under the original of Ex.A7 dated 20.01.2000, the said E.P. schedule property was attached before judgment as per orders in I.A.No.783/2003 in O.S.No.156/2003 on the file of Senior Civil Judge, Proddatur as seen from Ex.A2 which is the certified copy of the attachment warrants. However, Ex.A1 is the certified copy of the petition in I.A.No.783/2003. Ex.A3 is the certified copy of the written endorsement of the Ameen effecting the attachment, Ex.A.4 is the tom tom receipt. Ex.A5 is Encumbrance Certificate dated 13.10.2003. Ex.A6 is the house tax demand notice issued by the Panchayat Secretary. Ex.A.7 is the registered copy of the gift deed, dated 20.01.2000 as discussed above. Thus Exs.A1 to A7 do establish that the E.P. Schedule property was attached before judgment as per orders in I.A.No.783/2003 and it was made absolute on 4.11.2003 as seen from the docket orders passed on the original of Ex.A.1. Further the E.P. schedule property stood in the name of the respondent/judgment debtor as on the date of orders of attachment and also as on the date of effecting the attachment. 5. However, it is the case of the respondent/judgment debtor that he gifted the E.P. Schedule property in favour of his minor son Gurunath aged about ten years under the original of Ex.A8 on 28.01.2005. As seen from the records the attachment of the E.P. Schedule property before judgment was effected and made absolute on 4.11.2003. Whereas, respondent/judgment debtor executed the gift deed under the original of Ex.A.8 on 28.01.2005. It is evident that the registered gift under the original of Ex.A.8 is made subsequent to the attachment orders passed in I.A.No.783/2003, dated 4.11.2003 and therefore, it is invalid. However, neither the petitioner sought for cancellation of the gift deed under Ex.A6 nor respondent/judgment debtor sought for any claim in respect of E.P. Schedule property except filing the counter and no court fee is also paid thereon and the counter filed also does not claim right over the property stating that the E.P. Schedule property stands in the name of his son. 6. The court under the above circumstances holds that the gift under the original of Ex.A.8 is not valid and it is illegal and therefore in pursuance of the attachment of the E.P. Schedule property made before judgment in O.S.No.156/2003 as per orders in I.A.No.783/2003, dated 4.11.2003 holds good and accordingly the E.P. Schedule property is liable to be sold in execution of the decree passed in O.S.No.156/2003 for realization of the decretal amount. 7. In the result, the petition is allowed and the E.P. Schedule property is liable to be sold in execution of the decree passed in O.S.No.156/2003 for realization of the execution petition amount.” Since the encumbrance certificate reflected the judgment debtor executing a gift deed in favour of the petitioner herein, decree holder got the petitioner herein impleaded by filing application in the E.P. Notice sent to the petitioner represented by his guardian returned with an endorsement of refusal. Consequent to the refusal of the guardian of the petitioner to receive the notice, it came to be affixed on the door of the house of the petitioner. Property came to be auctioned on 16.04.2008. Sale came to be confirmed by the Court on deposit of the sale amount by the auction purchaser, who is the 3rd respondent in this revision. It appears some attempts have been made by the other sons of the judgment debtor to stall the proceedings by moving claim petitions. After the confirmation of the sale, the petitioner represented by his mother as guardian filed an application in the execution petition to set aside the ex parte order and also moved E.A.No.112 of 2011 to condone the delay of 559 days in filing the application to set aside the ex parte order, dated 08.07.2009. The guardian for the petitioner has sworn to the affidavit filed in support of the application. It is stated in the affidavit filed in support of the application that she is housewife and she has no worldly knowledge and as such she could not move the application to set aside the ex parte order passed against her minor son within the stipulated time. Paras. 4 and 5 of the affidavit need to be noted and they are thus: “4. I submit that either the minor petitioner/2nd respondent or I, on behalf of the minor petitioner/2nd respondent, never received any notice in the above main execution petition. I further submit that the aforesaid endorsement on the notice to the minor petitioner/2nd respondent is managed by the respondents 1 and 2/D.Hr and J.Dr by taking advantage of the minority of the petitioner/2nd respondent and my being a housewife, always engaged in my household work without any worldly knowledge. As such the said ex parte order, dated 02.07.2009, does not bind the right, title and interest of the minor petitioner/2nd respondent in the E.P. Scheduled property. The minor petitioner/2nd respondent is filing his counter along with this petition, setting up his right, title and interest in the E.P. scheduled property. The minor petitioner/2nd respondent craves the leave of this Hon’ble Court to read the averments made by him in the said counter as part and parcel of this affidavit. 5. I further submit that I, on behalf of the minor petitioner/2nd respondent came to know that the Respondents herein got the E.P. Schedule property sold in auction sale by employing fraud, whereupon I engaged counsel, who, on due enquiry informed me, on behalf of the petitioner/2nd respondent that the minor petitioner/2nd respondent herein has already been added as 2nd respondent in the above main execution petition and that subsequently on 08.07.2009 the petitioner/2nd respondent has been set ex parte by this Hon’ble Court as stated supra and such information has been received by me on behalf of the minor petitioner/2nd respondent only yesterday, i.e., on 31.01.2011 and immediately I am filing this petition to set aside the said ex parte Order, dated : 08.07.2009, passed by this Hon’ble Court against the Petitioner/2nd respondent.” The respondents 1 and 3 (decree holder and auction purchaser) filed counters resisting the application of the petitioner in the executing Court. The executing Court, on considering the material brought on record and on verifying the proceedings in the E.P., came to the conclusion that the application has been filed with a mala fide intention and it is a best example of abuse of process of law. With the above observation, the executing Court proceeded to dismiss the application, by an order, dated 29.04.2011. Hence, this revision. 3. Notice before admission came to be ordered on 19.07.2011. The respondents 1 and 3 entered appearance and 3rd respondent filed counter-affidavit. 4. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents 1 and 3. 5. Learned counsel appearing for the petitioner submits that the guardian of the petitioner never refused the notice. A further submission has been made that even otherwise the executing Court, consequent on refusal of notice by the guardian-mother of the petitioner, ought to have appointed a guardian ad litam for the minor petitioner as provided under Order 32, Rule 3 of CPC and as no guardian has been appointed for the minor, the proceedings that have taken place in the execution proceedings after an ex parte order against the minor are null and void. 6. The contention of the learned counsel appearing for the petitioner appears to be impressive on first blush, but on close scrutiny of the proceedings, I do not detain myself long to reject the same. It is a matter of record that the father of the minor is the judgment debtor and the present application has been filed by the mother of the minor styling herself as next friend. Notices in the execution petition after impleadment of the minor came to be sent to him through his guardian mother. It is also trite to note that the father of the minor, who is the judgment debtor, filed objections in the E.P. contending that he executed a gift deed conveying the property to his minor son after the attachment. In my considered view, even the impleadment of the minor in the E.P. is wholly unwarranted. When once the gift deed executed by the judgment debtor in favour of the minor is after the attachment, there is no bar for the decree holder to proceed against the property for realization of the decretal amount. It is also not out of place to mention that the petitioner, his mother and father (judgment debtor) reside under the same roof. It cannot be believed that the mother of the petitioner, who is now claiming as next friend-guardian, is not aware of the sale proceedings in the execution petition. The trial Court considered the material brought on record in right perspective and came to the conclusion that the petitioner failed to explain sufficient reasons for condonation of delay of 559 days in filing the petition to set aside the ex parte order, dated 08.07.2009 passed in E.P.No.14 of 2005. I do not see any valid ground to interfere with the finding recorded by the trial Court. 7. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:10th November, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2466 of 2011 Date:10th November, 2011