Killada Srikanth , Babu v. Ganthagoru Nageswara Rao

HON'BLE SRI JUSTICE C.PRAVEEN KUMAR CIVIL REVISION PETITION No. 4126 of 2018 ORDER:

The present Civil Revision Petition is filed under Section 115 of the Civil Procedure Code, assailing the order dated 05.07.2018 in E.A.Sr.No. 1775 of 2018 in E.P.No. 37 of 2005 in O.S.No. 4 of 2000 on the file of the Principal Junior Civil Judge, Tuni, East Godavari District, wherein the application filed by the petitioner under Order 21 Rule 90 of the Civil Procedure Code, to set aside the sale dated 01.05.2007, on the ground of fraud committed by the 1st respondent-decree holder, was dismissed.

2.

The 1st respondent herein filed O.S.No. 4 of 2000 against the present petitioner in this Civil Revision Petition, for recovery of the money based on a promissory note executed by the father of the petitioner. The said suit was decreed on 25.08.2004 in favour of the 1st respondent and against the petitioner and the 2nd respondent, directing them to pay the suit amount along with interest thereon, from out of the estate of the deceased Srinivasarao, which is lying in their hands. The record discloses that the petition schedule property was attached on 22.01.2000, i.e., before judgment.

Subsequently, the 1st respondent filed E.P for sale of the property to realize the decree amount. He got the property into sale, vide E.P.No. 37 of 2005, which was knocked down in favour of the decree holder on 01.05.2007, and the same was confirmed in his favour on 24.08.2007. The sale certificate was also issued on 17.09.2007. Subsequently, the 1st respondent, who is the decree holder, filed E.A.No. 266 of 2007 for delivery of the property, but, the same could not be effected in view of the report of the Ameena, stating that delivery could not be effected for want of police aid due to resistance from judgment debtors.

3.

At this stage, the petitioner filed E.A.(SR)No. 1775 of 2018 on the file of the Principal Junior Civil Judge, Tuni. After considering the same, the said application was dismissed. Assailing the said order, the present petition came to be filed.

4.

Heard learned counsel for the petitioner. In spite of service of notice on the respondents on 07.08.2018, there is no representation on their behalf.

5.

A perusal of the averments in the affidavit filed in support of the petition would show that the petitioner is one Killada Srikanth and a 2nd defendant in the suit. By the time of filing of the suit and Execution Petition, the petitioner was

a minor. Though the 2nd respondent herein, i.e., the 1st defendant was shown as the guardian, she failed to appear before the court and was set ex parte.

6.

Though the 1st respondent did not represent as a guardian for the minor, it is urged that the court below has a right to proceed in the execution petition. It is further urged that the petitioner herein is a blind person and the 2nd respondent is his mother, who remained ex parte in the suit. It is contended that though it is mandatory that the 1st respondent should have taken steps for appointment of a court guardian, for reasons best known, he did not do so, and as such, it is an incurable material defect. Apart from that, it is urged that in the Execution Petition, the name of the petitioner was wrongly shown as Killadi Babu instead of Killaada Srikanth. He further pleads that the 1st respondent, who is an influential person, colluded with the mother of the petitioner, who deserted the petitioner long back, married someone and living elsewhere.

7.

The scope of enquiry under Order 21 Rule 90 of the Civil Procedure Code is very limited. The Court has to see whether there is any irregularity or fraud in conducting the sale of property. As seen from the record, the plea of the petitioner appears to be that he is a blind person and that no notice was

served on him at any point of time, i.e., either in E.P. or in the original O.S., and that his mother, who claims to be his guardian, also did not contest the suit and remained ex parte. As the petitioner is blind and a minor, as on the date of filing of the suit and the E.P., and as the 2nd respondent, who is his mother, remained ex parte, great injustice and irreparable loss would be caused, if the request is not accepted. 8.

For the aforesaid reasons, the Civil Revision Petition is allowed. Miscellaneous petitions pending, if any, stand closed. There shall be no order as to costs. _________________________ JUSTICE C.PRAVEEN KUMAR 31.08.2018 DMG