whether the appellant is entitled to be released on parole in the light of the order passed by this Court on 29.03.2001 in Subash Chander (supra)?=“23. However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, taking on record the statement made on behalf of Krishan Lal(A1), we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the Rules made for the purposes of grant of commutation and remissions.”= In view of the order of this Court dated 29.03.2001 in Subash Chander (supra), we reiterate that the appellant is not entitled to normal parole in terms of Rule 9, however, in emergent cases involving humanitarian consideration, the Authority concerned is free to pass appropriate orders in terms of Rule 10 A(i) of the Rules. Even while considering such application, the Authority concerned is directed to adhere to the conditions mentioned in the said Rule, impose appropriate stringent condition(s) and see that by the temporary release of the appellant nothing happens to the complainant and his family and also pass appropriate orders giving them necessary protection. It is also made clear that if the Authority concerned is not satisfied with the reasons for temporary parole, it is free to reject such application. 13) With the above direction, the appeals are disposed of.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                                      1


                   2 CRIMINAL APPEAL NOs.1972-1973 OF 2012


            3 (Arising out of SLP (Crl.) Nos. 9202-9203 of 2011)






Krishan Lal                                          .... Appellant(s)

            Versus

State of Rajasthan & Anr.                             .... Respondent(s)




                               J U D G M E N T

P. Sathasivam, J.
1)    Leave granted.
2)    These appeals are directed against the order dated  06.10.2010  passed
by the High Court of Judicature for Rajasthan at Jodhpur  in  Writ  Petition
(Parole) No. 10309 of 2010 whereby a show cause notice  was  issued  to  the
appellant herein and the State Government and
it  was  also  held  that  the
convict- Krishan Lal (the appellant herein) shall not be released on  parole
or otherwise as ordered by this Court on 29.03.2001
 in the  case  of  Subash
Chander vs. Krishan Lal & Ors.  reported  in  (2001)  4  SCC  458  and  also
against the final order dated 06.04.2011 by which the petition filed by  the
appellant herein was dismissed as having rendered  infructuous.
3)    Brief facts:
(i)   The appellant herein was an accused in a murder  case  along  with  11
accused persons.
The trial Court convicted all the accused  persons  except
one for the offences under Section 302, 307, 148,  450  read  with  Sections
149 and 120B of the India Penal Code, 1860 (in short  “IPC”)  and  sentenced
them to death.
(ii)   Aggrieved  by  the  order  of  conviction  and  death  sentence,  the
appellant along with other accused persons filed  appeals  before  the  High
Court.
The High Court upheld the conviction of all  the  convicted  persons
including that of the appellant herein but commuted the  death  sentence  to
imprisonment for life.
(iii) Challenging the order of the High Court, the complainant –  respondent
No.2 herein filed two sets of appeals bearing Criminal Appeal  Nos.  812-814
of 1999 and Criminal Appeal Nos. 815-816 of 1999 before this  Court  praying
for setting aside the order of acquittal and awarding of death  sentence  to
the convicted persons as was done by the trial Court.
The  accused  persons
also filed two sets of appeals bearing Criminal Appeal Nos. 817-818 of  1999
and Criminal Appeal Nos. 819-820 of  1999  before  this  Court  praying  for
their acquittal by setting aside the  conviction  and  sentence  awarded  to
them by the trial Court and the High Court.
 The State  also  filed  appeals
before this Court for quashing the order of acquittal of one accused  person
and for awarding death sentence to the convicted persons.  
This  Court,  in
the  above said  appeals,  by  judgment  dated  29.03.2001,   confirmed   the
conviction and sentence awarded to the accused persons  by  the  High  Court
and held that the imprisonment for life  awarded  to  the  appellant  herein
shall be the imprisonment in prison for the rest of his life  and  
he  shall
not be entitled to any commutation or premature release  under  Section  401
of the Code of Criminal Procedure, 1973 (in  short  “the  Code”),  Prisoners
Act, Jail Manual or any other Statute and the Rules made  for  the  purposes
of grant of commutation and remissions.
(iv)  Prior to the order  of  this  Court  in  Subash  Chander  (supra), 
 on
06.03.1999 and 12.05.2000, the appellant herein was allowed  regular  parole
of 20 days and 30 days respectively by the Parole  Advisory  Committee  and,
accordingly he availed the same.
 During  the  period  from  2001-2010,  the
appellant tried for third regular parole  for  40  days  by  filing  various
applications but the same were not considered. 
 Aggrieved by the  same,  the
appellant herein moved the High Court by filing an  application  being  D.B.
Criminal  Parole  No.  2982  of  2010.  
The  High  Court  by  order   dated
26.05.2010, directed the Parole Advisory Committee for considering the  case
of the appellant.  Vide  order  dated  12.08.2010,  the  Advisory  Committee
released the appellant herein on parole on 18.08.2010 for 40 days.
(v)   Aggrieved by the orders dated 26.05.2010 and 12.08.2010 passed by  the
High Court and the Parole Advisory Committee respectively,
 the  Complainant-
respondent No.2 herein filed an application being  Civil  Misc.  Application
No. 93 of 2010 in DB Criminal W.P. No. 2982 of 2010 before  the  High  Court
for reconsideration of the order  dated  26.05.2010  and  for  quashing  the
order dated 12.08.2010 passed by the Parole Advisory  Committee.  
 The  High
Court, by impugned order dated 06.10.2010, issued show cause notice  to  the
appellant herein and the State Government and also held that  the  appellant
shall not be released on parole or otherwise as ordered  by  this  Court  in
the case of Subash Chander  (supra).   
After  the  reply  of  the  appellant
herein, the High Court,  by  final  order  dated  06.04.2011  dismissed  the
petition filed by the appellant herein as having rendered infructuous.
(vi)  Against the orders dated 06.10.2010  and  06.04.2011,   the  appellant
has filed these appeals by way of special leave before this Court.
4)    Heard Mr. K.V. Viswanathan, learned senior counsel for the  appellant,
Mr. Amit  Bhandari,  learned  counsel  for  respondent  No.1-State  and  Mr.
Rishabh Sancheti, learned counsel for respondent No.2-the Complainant.
5)    The only point for consideration  in  these  appeals  is
 whether  the
appellant is entitled to be released on parole in the  light  of  the  order
passed by this Court on 29.03.2001 in Subash Chander (supra)?
6)    In order to understand the claim of the appellant,
 it  is  useful  to
refer the direction given by this Court in  Subash  Chander  (supra).  
When
the above-said appeals were filed by the complainant, the State as  well  as
the accused before this Court, it was represented on behalf of  the  present
appellant – Krishan Lal (A-1) that the Court can pass appropriate orders  to
deprive the appellant herein of his liberty  throughout  his  life.   It  is
also seen from the order that upon instructions,  Mr.  U.R.  Lalit,  learned
senior counsel submitted that Krishan  Lal  (A-1)  –  appellant  herein,  if
sentenced to life imprisonment, would never claim his pre-mature release  or
commutation of his sentence on any  ground.   The  above  statement  of  the
learned senior counsel for Krishan Lal (A-1) –  appellant  herein  had  been
recorded by this Court.  It is also relevant to note that in the  course  of
hearing, Mr. Ranjit Kumar, learned senior  counsel,  who  appeared  for  the
Complainant in that matter, contended that if accused like Krishan  Lal  (A-
1), appellant herein, is  not  awarded  death  sentence,  he  is  likely  to
eliminate the remaining family members of Bhagwan Ram, as  is  evident  from
his past conduct and behaviour.  He  further  submitted  that  in  order  to
protect the surviving family members of Bhagwan Ram, it is necessary  to  at
least  deprive  Krishan  Lal(A-1)-appellant  herein  of  his  life.   It  is
relevant to point out that this Court accepted the apprehension made by  the
learned senior counsel for the Complainant.   In  those  circumstances,  the
following order insofar as Krishan Lal – the appellant herein  is  concerned
was passed:
      “23. However, in the peculiar circumstances of the case,  apprehending
      imminent danger to the life of  Subhash  Chander  and  his  family  in
      future, taking on record the  statement  made  on  behalf  of  Krishan
      Lal(A1), we are inclined to hold that for  him  the  imprisonment  for
      life shall be the imprisonment in prison for the  rest  of  his  life.
      He shall not be entitled to any commutation or premature release under
      Section 401 of the Code of Criminal  Procedure,  Prisoners  Act,  Jail
      Manual or any other statute and the Rules made  for  the  purposes  of
      grant of commutation and remissions.”
                                           (Emphasis supplied)


7)    From the above direction,  it  is  clear  that  Krishan  Lal-appellant
herein has to serve the imprisonment throughout his life in  prison  and  is
not entitled to any commutation or premature release under the Code  or  any
other Act including Prisoners Act, Jail Manual or any other statute and  the
Rules made for the purposes of grant of commutation and remissions.  
It  is
true that this Court has not considered his right or entitlement of parole.
8)    Mr. K.V. Viswanathan, learned senior  counsel  for  the  appellant  in
support of his claim for parole relied on the  Rajasthan  Prisoners  Release
on Parole Rules 1958.  In exercise of the powers  conferred  by  sub-section
(6) of Section 401 of the Code of  Criminal  Procedure,  the  Government  of
Rajasthan has passed the above Rules.   Section  2(d)  defines  “Parole”  as
under:
           “2(d) “Parole” means conditional enlargement of a prisoner  from
           the jail under these rules”

As per the Rules, a prisoner sentenced to imprisonment  for  not  less  than
one year may be permitted to make  an  application  for  release  on  parole
before the Prisoners Parole Advisory Committee.
Rules provide  constitution
of Prisoners Parole Advisory Committee and  procedures  to  be  followed  in
considering such applications.  Rule  9  of  the  said  Rules  speaks  about
Parole period.
 Mr. Viswanathan has also pointed out that on  the  basis  of
the said Rules, the appellant was granted parole on two occasions  i.e.,  on
06.03.1999 and 12.05.2000 for a period of 20 days and 30 days  respectively,
and when the appellant made another application  praying  for  third  parole
for 40 days, based on the order dated 26.05.2010  of  the  High  Court,  the
Advisory Committee, by order dated  12.08.2010  released  the  appellant  on
parole for  a  period  of  40  days  on  18.08.2010.   The  said  order  was
challenged by  the  complainant  –  respondent  No.2  herein  by  filing  an
application being D.B. Civil Misc. Application No. 93  of  2010  before  the
High Court.  Considering the earlier order of this  Court  dated  29.03.2001
in Subash Chander (supra), the  High  Court  rejected  the  3rd  application
filed by the appellant for parole.
9)    Learned counsel  appearing for the State as well  as  the  Complainant
submitted that in view of the stand taken by the learned senior counsel  for
the appellant  before  this  Court  giving  up  his  right  of  praying  for
commutation or premature release and be in prison till the end of  his  life
and the apprehension of the complainant’s family that in the  event  of  his
release even on parole he  is  likely  to  eliminate  the  remaining  family
members of Bhagwan Ram,  the present appeals are liable to be dismissed.
10)   We have already extracted the ultimate order of this Court  confirming
the imprisonment for life in prison for  rest  of  his  life  and  foregoing
commutation or premature release under  any  of  the  statute  or  Rules  or
Circulars.
Though Mr.  Viswanathan  has  claimed  that  the  appellant  was
granted parole on two occasions for 20 days  and  30  days  and  no  adverse
against the appellant  was  reported,  it  is  relevant  to  note  that  the
appellant was granted parole on the abovesaid two  occasions  prior  to  the
order passed by this Court on 29.03.2001 in Subash Chander (supra)  and  the
specific  direction  of  this  Court  in  that  order  was  not  placed  for
consideration at the time of granting 3rd parole to  the  appellant  by  the
Advisory Committee.
11)     Though the  Rajasthan  Prisoners  Release  on  Parole   Rules,  1958
enables the appellant to apply for parole before the Advisory Committee,  we
are of the view that in view of the commutation of death sentence into  life
imprisonment and   specific  conditions  imposed  foregoing  commutation  or
premature  release  under  any  statute  or  Rules   and   considering   the
apprehension expressed by the complainant-respondent No.2  herein,  we  hold
that henceforth the appellant shall not be entitled for  regular  parole  in
terms of Rule 9 of the said Rules.
 However, if any contingency arises,  the
same may be considered by the Advisory Committee in terms  of  Rule  10-A(i)
of the said Rules which reads as under:
      “10-A(i)  Notwithstanding the provision of rules  3,4,5,  9  &  10  in
      emergent  cases,  involving  humanitarian  consideration   viz.,   (1)
      critical condition on account of illness of any close  relations  i.e.
      father, mother, wife, husband, children, brother or unmarried  sister;
      (2) death of any such close relation; (3) serious damage  to  life  or
      property from any natural calamity; and (4) marriage  of  a  prisoner,
      his/her son or daughter or his/her brothers/sisters  in  case  his/her
      parents are not alive.
           A Prisoner may be released on parole for a period not  exceeding
      7 days by the  Superintendent  of  the  Jail  and  for  a  period  not
      exceeding 15 days  by  the  Inspector  General  of  Prisons  (District
      Magistrate)  on  such  terms  and  conditions  as  they  may  consider
      necessary to impose for the  security  of  the  prisoner  including  a
      guarantee for his return to the jail, acceptance or execution  whereof
      would be a condition precedent to the  release  of  such  prisoner  on
      parole.”


12)   In view of the order of this Court dated 29.03.2001 in Subash  Chander
(supra), 
we reiterate that the appellant is not entitled  to  normal  parole
in terms of Rule  9,  however,  in  emergent  cases  involving  humanitarian
consideration, the Authority concerned is free to  pass  appropriate  orders
in terms of Rule  10  A(i)  of  the  Rules.   Even  while  considering  such
application,  the  Authority  concerned  is  directed  to  adhere   to   the
conditions  mentioned  in  the  said  Rule,  impose  appropriate   stringent
condition(s) and see that by the temporary release of the appellant  nothing
happens to the complainant and his family and also pass  appropriate  orders
giving them necessary protection.   It  is  also  made  clear  that  if  the
Authority concerned is not satisfied with the reasons for temporary  parole,
it is free to reject such application.
13)   With the above direction, the appeals are disposed of.






                             ...…………….…………………………J.


                                 (P. SATHASIVAM)






                             ..…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
DECEMBER 03, 2012.
-----------------------
11

Whether the objection of the revision petitioners is that since Haami Pathram creates interest in drawing the water from bode and since the subject matter of the suit is revolved around the said bode, it requires registration, and as such, it is inadmissible in evidence. = A Photostat copy of Hami Pathram has been placed before this Court. A plain reading of the same goes to show that the respondents have been drawing the water from the bode prior to execution of the Haami Pathram and the same was categorically asserted by the executant, who is vendor of the revision petitioners. The executant assured the respondents that they would not be obstructed from drawing water from the bode for cultivating of their lands, in the event of sale. In view of the same, it can be construed that a right is already created to the respondents for drawing water from the bode prior to execution of the Haami Pathram. Haami Pathram was executed only to continue that right. The respondents sought to mark Haami Pathram only to show a right was already created with regard to drawing water from the bode in their favour by the vendor of the revision petitioners and they have been assured to continue that right even in the event of sale. To that limited extent, the Haami Pathram can be marked as exhibit for collateral purpose. Further, Haami Pathram is not supported by any consideration. As per Section 17(b) of the Registration Act, the document is required to be supported by consideration of the value of one hundred rupees and upwards in immovable property. The decision of this Court relied on by the revision petitioners in Natrambaka Krishnaiah v. Nellore Audinarayana (supra) is not applicable to the facts of the case on hand because in the said decision the agreement/understanding is that petitioner-plaintiff would be permitted to formulate the channel from the land of respondent-defendant, and thus it creates right in favour of the petitioner-plaintiff therein, whereas in the case on hand, the right was already created and the Haami pathram was executed only to assure that the respondents shall continue that right in the event of sale by the executant. 7. In view of the above reasons and in the circumstances, this Court is of the view that the impugned order does not suffer from any error or irregularity warranting interference from this revisional Court, and as such, the Civil Revision Petition is liable to be dismissed. 8. In the result, the Civil Revision Petition is dismissed. No order as to costs.

HON'BLE SRI JUSTICE B.N. RAO NALLA    

C.R.P. No.5811 OF 2009

09.11.2012    

Meenavalli Govindu s/o. late Narayana Murthy and two others

Meenavalli Adilakshmi and another

Counsel for the petitioners: Sri V.S.R. Anjaneyulu

Counsel for Respondents: Sri K.Sarva Bhouma Rao

<GIST:

>HEAD NOTE: 1 2006 (1) ALT 76

ORDER:

    This revision is filed by the defendants in O.S. No.365 of 2007 on the file
of the Principal Junior Civil Judge, Machilipatnam, assailing the order dated
18.11.2009

2.        The revision petitioners herein are the defendants and the respondents
herein are the plaintiffs in the suit in O.S. No.365 of 2007.
The respondents
filed the suit for mandatory injunction and permanent injunction. 
When the
respondents, during the course of trial, sought to mark a document styled as
"Haami Pathram" as exhibit, the revision petitioners took objection and
accordingly they filed the objections before the trial Court stating that the
"Haami Pathram" requires registration under Section 17(b) of Registration Act.
The trial Court after hearing both sides, overruled the objections raised by the
revision petitioners for marking "Haami Pathram" by impugned order dated
18.11.2009 holding that though a right is created, the document is not supported
by consideration of Rs.100/- and upwards, and as such,  it does not require
stamp duty/registration.

3.         Heard the learned counsel on either side and perused the material made
available on the record.

4.        The respondents claimed that they are having irrigation bode "ABCD" and
drawing water since the date of their purchase for cultivating their lands. The
said bode is in existence even prior to 1967.  
The vendor of the revision
petitioners had executed "Haami Pathram" to the father of the first plaintiff
and defendant No.1 stating that he would not change the nature and features of
the  bode even in the event of sale in future. 
 The respondents have no other
water source for cultivating their lands except through the said bode. On
20.06.2007, when the revision petitioners ploughed the irrigation bode and as a
result of consequent events, they filed the present suit.

5.      It is contended by the revision petitioners that the bode is merged with
the soil long back and the respondents never draw the water through the bode and
they got other source of water to the east of their lands.  Apart from that, it
is contended that since the document "Haami Pathram" creates interest in present
and future to draw water from bode, it requires registration under Section 17(b)
of Registration Act, and as such, it is        inadmissible in evidence and in
support of their contention, they relied on the decision of this Court in
Natrambaka Krishnaiah v. Nellore Audinarayana.1  It is further contended that
the trial Court erred in coming to the conclusion that the respondents are
entitled to proceed with the trial by marking Haami Pathram as exhibit, though
there are catena of decisions that stamp duty and penalty shall have to be
collected before marking such document.

6.      There is no dispute with regard to execution and genuineness of the Haami
Pathram.
The main objection of the revision petitioners is that
 since Haami
Pathram creates interest in drawing the water from bode and since the subject
matter of the suit is revolved around the said bode, it requires registration,
and as such, it is inadmissible in evidence. 
A Photostat copy of Hami Pathram
has been placed before this Court.
A plain reading of the same goes to show
that the respondents have been drawing the water from the bode prior to
execution of the Haami Pathram and the same was categorically asserted by the 
executant, who is vendor of the revision petitioners. The executant assured the
respondents that they would not be obstructed from drawing water from the bode
for cultivating of their lands, in the event of sale.  In view of the same, it
can be construed that a right is already created to the respondents for drawing
water from the bode prior to execution of the Haami Pathram.  Haami Pathram was 
executed only to continue that right. The respondents sought to mark  Haami
Pathram only to show a right was already created with regard to drawing water
from the bode in their favour by the vendor of the revision petitioners and they
have been assured to continue that right even in the event of sale.  To that
limited extent, the Haami Pathram can be marked as exhibit for collateral
purpose.   Further, Haami Pathram is not supported by any consideration.  As per
Section 17(b) of the Registration Act, the document is required to be supported
by consideration of the value of one hundred rupees and upwards in immovable
property.  The decision of this Court relied on by the revision petitioners in
Natrambaka Krishnaiah v. Nellore Audinarayana (supra)  is not applicable to the
facts of the case on hand because in the said decision the
agreement/understanding is that  petitioner-plaintiff would be permitted to
formulate the channel from the land of respondent-defendant, and thus it creates
right in favour of the petitioner-plaintiff therein, whereas in the case on
hand, the right was already created and the Haami pathram was executed only to
assure that the respondents shall continue that right in the event of sale by
the executant.

7.      In view of the above reasons and in the circumstances, this Court is of
the view that the impugned order does not suffer from any error or irregularity
warranting interference from this revisional Court, and as such, the Civil
Revision Petition is liable to be dismissed.

8.        In the result, the Civil Revision Petition is dismissed.  No order as to
costs.
_________________    
B.N. RAO NALLA, J    
Date:09.11.2012

Whether the executing court can proceed with sale of property of JDRs in which one of the JDR was declared as insolvent pending Execution petition ? - yes - "28. Effect of an order of adjudication:- (1) On the making of an order of adjudication, the insolvant shall aid to the utmost of his power in the realization of his property and the distribution of the proceeds among his creditors. (2) On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as herinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding except with the leave of the Court and on such terms as the Court may impose. " From a perusal of this, it is evident that once an order of adjudication is passed by a Court declaring a person as insolvent, the entire property of the person so declared shall vest in the Court or in the Receiver and shall become divisible among the creditors. It is a matter of common knowledge that the Act provides for institution of proceedings by the creditor under Section 9 of the Act and by the debtor himself, under Section 10 of the Act. The parameters for adjudication of these two categories of petitions are totally different. In a petition filed by a debtor under Section 10 of the Act, he shall be under obligation to furnish the list of his creditors on the one hand and the properties and assets held by him on the other hand. In addition to that, if a debtor omits to mention the names of any creditors or items of property held by him, it shall always be open to the concerned person, to get them included. Every effort is made to ensure that the properties are not shielded and collusion is avoided. If after thorough examination, the petitioner in such proceedings is declared as insolvent, his financial status comes to be pronounced and all the creditors shall be made to share the proceeds of the assets held by the debtor. The petition filed by the creditor under Section 9 of the Act however stands on a different footing. The effort or endeavour in such petition shall be only with reference to the debts, which the debtor owes to him. The inclusion of the properties would also be to the extent it can serve the debt. The creditor does not have the necessity, nor he is entitled, to include all the assets of the debtor. The declaration in such petition, that the debtor is insolvent would only be vis--vis the amount, which he owes to the petitioner in such I.P. It does not tell upon the obligation of the debtor towards others, who are not made parties. In certain cases of this nature also, it may be possible to have almost universal declaration, if a debtor who figures as a respondent volunteers to furnish the list of all his credits and his assets. If any effort in this direction is made, the declaration may be qualitatively the same as the one made in an I.P. filed under section 10 of the Act. In the absence of such a comprehensive effort, the order passed in an I.P. filed under Section 9 of the Act by creditor cannot be equated to the one passed in an I.P. filed under Section 10 of the Act by the debtor himself, when it comes to the question of the consequences provided for under Section 28 of the Act. Any other different approach would tantamount to give a licence to a debtor to arrange for filing of a collusive O.P. under Section 10 of the Act by a fictitious person and to block all the efforts made by the real creditors by taking shelter under Section 28(2) of the Act. Assuming that such a distinction cannot be maintained and the order passed in I.P.No.1 of 2009 would attract Section 28(2) of the Act also, the fact remains that the necessity to make over the properties held by a person declared as insolvent, to the Court or to the Receiver, would arise only when the claim of the creditor in such an I.P. remains unsatisfied. That was not even the plea in the instant case. The petitioner in the I.P. did not have any grievance that his claim was not satisfied. The very fact that nothing is said about those proceedings gives strength to the allegation that the proceedings were fictitious in nature. Even otherwise, the order in the I.P. would, at the most, galvanize the 1st respondent. It is not in dispute that respondents 2 to 4 are equally the judgment debtors and they had their own right vis--vis the property, which was sought to be sold. Therefore, the view taken by the executing Court cannot be sustained. Therefore, the civil revision petition is allowed and the order under revision is set aside. The Executing Court is directed to proceed with the sale of the attached item of property. The miscellaneous petition filed in this civil revision petition shall also stand disposed of. There shall be no order as to costs.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Civil Revision Petition No. 998 of 2012

08.11.2012
       
Pulipati Anjaneyulu.

Polepalli Subbaiah and others.

Counsel for the petitioner: Sri Narasimha Rao Davuluri

Counsel for respondents: Meherchand Noori

<GIST:

>HEAD NOTE:  

?Cases referred:

ORDER:
        The petitioner filed O.S.No.238 of 2000 in the Court of Principal Junior
Civil Judge, Markapur, against the respondents for recovery of certain amount.
The 1st respondent is the father and respondents 2,3, and 4 are his sons.
The
suit was decreed and an item of immovable property viz., a house at Markapur was
attached.  
Steps were initiated for sale of the property, by filing E.P.No.2 of
2010.
 The 1st respondent raised an objection in the E.P., stating that he filed
I.P.No.1 of 2009 in the Court of Senior Civil Judge, Darsi to declare him as an
insolvent and 
though the I.P. was dismissed by the trial Court, 
A.S.No.52 of
2009 filed in the Court of VI Additional District Judge (Fast Track Court),
Markapur was allowed, through order dated 17.08.2009.
 Placing reliance upon
Sub-
Section (2) of Section 28 of the Provincial Insolvency Act, 1920 (for short 'the
Act') 
it was urged that all the properties of a person declared as insolvent
have to be handed over to the official liquidator and if so advised, the
petitioner has to seek enforcement of the decree, in accordance with the
provisions of the Act.
 The Executing Court sustained the objection, raised the
attachment and dismissed the E.P. by recording a finding that the respondents do
not have any saleable interest in the schedule property. 
Hence, this revision.
        Sri Narasimha Rao Davuluri, learned counsel for the petitioner submits
that
the very representation made by the 1st respondent that he filed an I.P. is
incorrect and the said I.P. was filed by a creditor in respect of a small amount
of Rs.25,000/-.
He submits that one item of property was shown in the schedule
in the I.P. and the house, which is mentioned in the E.P. herein, was not
included at all.
He further submits that the arrangement contemplated
under Sub-
Section (2) of Section 28 of the Act ensues, only where a debtor himself files
the I.P. and gets himself declared as an insolvent and not where one creditor
files an I.P. and only one item of the property held by the person declared as
insolvent is brought under the purview of those proceedings.
Alternatively, he
submits that even if there was any impediment, to proceed against the 1st
respondent, the E.P. could have been continued vis--vis respondents 2 to 4 who
too figured as judgment debtors 2 to 4. 
He relied upon certain decided cases.
        Sri Meherchand Noori, learned counsel for the respondents submits
 that the
Act does not differentiate between the proceedings instituted by a creditor and
a debtor and the consequences provided for under Section 28 are common to any
proceedings instituted under the Act.
He further submits that a factual mistake
as to the nature of the insolvency proceedings was rectified by filing a memo.
Another submission of the learned counsel is that respondents 2 to 4 do not have
any independent stand vis--vis the properties of the joint family.
        The petitioner filed the suit for recovery of amount against the
respondents and obtained a decree on 11.02.2004.
Since the decree was not
complied with, he filed the E.P. and made an attempt to bring an item of
immovable property to sale.
The respondents resisted the attempt by citing the
fact that the 1st respondent was declared as insolvent in I.P.No.1 of 2009.
Though a serious factual error has crept into the order, may be on account of a
misrepresentation made by the 1st respondent, the fact remains that one Sri
Garnepudi Lingaiah claiming himself to be creditor, filed the I.P. against the
1st respondent stating that the latter borrowed a sum of Rs.25,000/- by
executing promissory note and when demand was made for repayment, he replied  
expressing his inability.
The basis for inclusion of an item of immovable
property in the schedule was that the 1st respondent had an agreement of sale
for it and the trial Court dismissed the I,P.,  by taking the view that the
liability is not proved and that mere agreement of sale does not confer any
right upon the 1st respondent.
In an appeal preferred by the petitioner in the
I.P., a different view was taken and it was allowed. The respondents are not
able to inform this Court as to
whether the debt was cleared or whether the
property mentioned in the I.P. was brought to sale.
The allegation of the
petitioner that the I.P. was collusive in nature and was just a devise to cheat
others cannot be totally brushed aside.
        Be that as it may, the respondents wanted to avoid their liability under
the decree in O.S.No.238 of 2000 by placing reliance upon Sub-Section (2) of
Section 28 of the Act. The provision reads:
        "28. Effect of an order of adjudication:-
       (1) On the making of an order of
adjudication, the insolvant shall aid to the utmost of his power in the
realization of his property and the distribution of the proceeds among his
creditors.
        (2)     On the making of an order of adjudication, the whole of the property
of the insolvent shall vest in the Court or in a receiver as herinafter
provided, and shall become divisible among the creditors, and thereafter, except
as provided by this Act, no creditor to whom the insolvent is indebted in
respect of any debt provable under this Act shall during the pendency of the
insolvency proceedings have any remedy against the property of the insolvent in
respect of the debt, or commence any suit or other legal proceeding except with
the leave of the Court and on such terms as the Court may impose. "
        From a perusal of this, it is evident that once an order of adjudication
is passed by a Court declaring a person as insolvent, the entire property of the
person so declared shall vest in the Court or in the Receiver and shall become
divisible among the creditors.
        It is a matter of common knowledge that
 the Act provides for institution
of proceedings by the creditor under Section 9 of the Act and by the debtor
himself, under Section 10 of the Act. 
The parameters for adjudication of these
two categories of petitions are totally different. 
In a petition filed by a
debtor under Section 10 of the Act, he shall be under obligation to furnish the
list of his creditors on the one hand and the properties and assets held by him
on the other hand.
In addition to that, if a debtor omits to mention the names
of any creditors or items of property held by him, it shall always be open to
the concerned person, to get them included.
Every effort is made to ensure that
the properties are not shielded and collusion is avoided.
 If after thorough
examination, the petitioner in such proceedings is declared as insolvent, his
financial status comes to be pronounced and all the creditors shall be made to
share the proceeds of the assets held by the debtor.
        The petition filed by the creditor under Section 9 of the Act
however
stands on a different footing.
The effort or endeavour in such petition shall
be only with reference to the debts, which the debtor owes to him. 
The inclusion
of the properties would also be to the extent it can serve the debt. 
The
creditor does not have the necessity, nor he is entitled, to include all the
assets of the debtor. 
The declaration in such petition, 
that the debtor is
insolvent would only be vis--vis the amount, which he owes to the petitioner in
such I.P. 
It does not tell upon the obligation of the debtor towards others, who
are not made parties. 
In certain cases of this nature also, it may be possible
to have almost universal declaration, if a debtor who figures as a respondent
volunteers to furnish the list of all his credits and his assets.
 If any effort
in this direction is made, the declaration may be qualitatively the same as the
one made in an I.P. filed under section 10 of the Act.
 In the absence of such a
comprehensive effort, the order passed in an I.P. filed under Section 9 of the
Act by creditor cannot be equated to the one passed in an I.P. filed under
Section 10 of the Act by the debtor himself, when it comes to the question of
the consequences provided for under Section 28 of the Act. 
Any other different
approach would tantamount to give a licence to a debtor to arrange for filing of
a collusive O.P. under Section 10 of the Act by a fictitious person and to block
all the efforts made by the real creditors by taking shelter under Section 28(2)
of the Act.
        Assuming that such a distinction cannot be maintained and
the order passed
in I.P.No.1 of 2009 would attract Section 28(2) of the Act also,
the fact
remains that the necessity to make over the properties held by a person declared
as insolvent, to the Court or to the Receiver, would arise only when the claim
of the creditor in such an I.P. remains unsatisfied. 
That was not even the plea
in the instant case.
The petitioner in the I.P. did not have any grievance that
his claim was not satisfied.
The very fact that nothing is said about those
proceedings gives strength to the allegation that the proceedings were
fictitious in nature.
 Even otherwise, the order in the I.P. would, at the most,
galvanize the 1st respondent.
 It is not in dispute that respondents 2 to 4 are
equally the judgment debtors and they had their own right vis--vis the
property, which was sought to be sold. 
Therefore, the view taken by the
executing Court cannot be sustained.
        Therefore, the civil revision petition is allowed and the order under
revision is set aside. The Executing Court is directed to proceed with the sale
of the attached item of property.
        The miscellaneous petition filed in this civil revision petition shall
also stand disposed of.  There shall be no order as to costs.
____________________  
L.NARASIMHA REDDY, J    
Date: 08.11.2012

Or.6, rule 17 c.p.c = whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into suit for declaration of title and recovery of possession." In paragraph 7, the Supreme Court held as under: "In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings."

THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY              

CIVIL REVISION PETITION No.1773 of 2012    

01-11-2012 

Chinnapareddy Subba Reddy   

Chinnapareddy Srinu and 2 others 

Counsel for Petitioner:  Mrs. Nimmagadda Revathi for Mr. Nimmagadda 

Satyanarayana. 

Counsel for Respondents: Mrs. B.Prasanthi for Mr. Kotireddy Idamakanti.

                                

<GIST: 

>HEAD NOTE:    

? CITATIONS:  

AIR 2002 SC 3369  

ORDER:  

        This Civil Revision Petition is filed against order dated 05.03.2012 in

I.A.No.687 of 2011 in O.S.No.92 of 2009 on the file of the learned Senior Civil

Judge, Darsi.

        The petitioner filed the above-mentioned

 suit for permanent injunction

restraining the respondents from interfering with his possession of the suit

schedule property.

 He also filed I.A.No.419 of 2009 seeking temporary

injunction.

 After enquiry, the said I.A. was dismissed by the lower Court by

holding that the petitioner was not in possession and enjoyment of the suit

schedule property. 

Thereafter, the petitioner filed I.A.No.687 of 2011 under

Order VI Rule 17 of C.P.C., seeking amendment of the plaint by adding the

alternative relief of recovery of possession. 

This application was dismissed by

the lower Court, by its order dated 05.03.2012, on the ground that as the

petitioner has been all through pleading that he was in possession of the

property, the application for amendment, if allowed, will change the nature and

character of the suit.

 Feeling aggrieved by the said order, the plaintiff filed

this Revision Petition.

        At the hearing, Mrs. Nimmagadda Revathi, learned counsel for the

petitioner, submitted

 that the Court below has committed a serious

jurisdictional error in dismissing the petitioner's application on a totally

misconceived premise that the application for amendment in a suit for permanent

injunction claiming alternative relief of possession is not maintainable.

 In

support of her submission, she has placed reliance on the judgment of the

Supreme Court in Sampath Kumar v. Ayyakannu and another1.    

        Opposing the above submission, Mrs. B. Prasanthi, learned counsel 

representing Mr. Idamakanti Kotireddy, learned counsel for the respondents,

submitted that the proposed amendment comes into conflict with the original

pleadings of the petitioner and, therefore, the lower Court has rightly rejected

the petitioner's application for amendment.

        I have carefully considered the respective submissions of the learned

counsel for the parties and perused the record.

        While dismissing the application for amendment, the Court below has

observed that the amendment sought by the petitioner is contrary to his

pleadings and, therefore, such amendment is not permissible in law. 

In Sampath

Kumar (supra), the plaintiff initially filed the suit for permanent injunction

claiming that he was in possession of the suit schedule property.

 In the written

statement, the defendant denied the plaintiff's plea of possession on the date

of institution of the suit and had set up possession in himself.

 Before the

commencement of the trial, the plaintiff moved an application under Order VI

Rule 17 CPC for amendment of the plaint, wherein he has pleaded that during the

pendency of the suit, the defendant has forcibly dispossessed him.

 He has,

therefore, sought for amendment of the relief of declaration of title and

consequential relief of delivery of possession. 

The trial Court rejected the

said application for amendment and its order was confirmed by the High Court in

Revision. While granting leave against the said orders, 

the Supreme Court has

framed the following question:

"The short question arising for decision is whether it is permissible to convert

through amendment a suit merely for permanent prohibitory injunction into suit

for declaration of title and recovery of possession."

        In paragraph 7, the Supreme Court held as under:

"In our opinion, 

the basic structure of the suit is not altered by the proposed

amendment.  

What is sought to be changed is the nature of relief sought for by

the plaintiff. 

 In the opinion of the trial Court it was open to the plaintiff

to file a fresh suit and that is one of the reasons which has prevailed with the

trial Court and with the High Court in refusing the prayer for amendment and

also in dismissing the plaintiff's revision. 

 We fail to understand, if it is

permissible for the plaintiff to file an independent suit, why the same relief

which could be prayed for in a new suit cannot be permitted to be incorporated

in the pending suit.  

In the facts and circumstances of the present case,

allowing the amendment would curtail multiplicity of legal proceedings."

        In my opinion, the above-referred judgment of the Supreme Court applies in

all fours to the present case. Even though the petitioner has asserted in his

plaint that he was in possession of the property, obviously on account of the

prima facie finding rendered by the lower Court in the application for

injunction, he has sought for an alternative relief of recovery of possession.

There is no embargo on the petitioner claiming such an alternative plea.

Eventually, it is for him to establish whether he was in possession of the

property, failing which he has to establish his right for recovery of

possession.  

As held by the Supreme Court in the above-mentioned judgment, by 

dismissing the applications for amendment of this nature, the parties will be

driven to file a separate suit for recovery of possession and that would only

lead to multiplicity of proceedings. Unless the prayer sought to be made by way

of amendment is barred by law, the Courts shall make a liberal approach in

allowing the applications for amendment in order to avoid multiplicity of

proceedings. It is not the pleaded case of the respondents that the amendment is

barred by any law, such as the law of Limitation, or that any right vested in

the respondents will be taken away by allowing such amendment. 

For the above-mentioned reasons, I am of the opinion that the lower Court has

committed a serious jurisdictional error in rejecting the petitioner's

application for amendment. The order of the lower Court is, accordingly, set

aside and I.A.No.687 of 2011 is allowed.

The Civil Revision Petition is accordingly allowed.

As a sequel, CRPMP.No.2369 of 2012 of 2012 filed by the petitioner for interim

relief is disposed of as infructuous.

_______________________    

C.V.NAGARJUNA REDDY,J      

01.11.2012

or. 6, rule 17 of c.p.c. - whether the averments on the basis of which the application for amendment was filed are correct or not are not germane for consideration at the time of considering the application for amendment. Such averments can be put to test only in the trial. The only question that is relevant at the time of considering the application for amendment is whether such amendment is permissible in law. The law is well settled that the plaintiff in a suit for permanent injunction is entitled to seek amendment by claiming relief of declaration of title and recovery of possession and that such amendment does not alter the nature of the suit. (See Sampath Kumar, Appellant v. Ayyakannu and another2)

THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY              

CIVIL REVISION PETITION No.1723 of 2012    

01-11-2012 

Bhanoth Mangamma    

Chitla Ram Reddy  

Counsel for Petitioner:  Mr.Ashok Reddy

Counsel for Respondent: Mr. Dantu Srinivas

                                

<GIST: 

>HEAD NOTE:    

?CITATIONS:  

2002 (6) ALT 219 

ORDER:  

        This Civil Revision Petition is filed against order dated 13.03.2012 in

I.A.No.538 of 2011 in O.S.No.112 of 2009 on the file of the learned Senior Civil

Judge, Jangaon. 

        I have heard Mr. Ashok Reddy, learned counsel for the petitioner, and Mr.

Dantu Srinivas, learned counsel for the respondent.

        The respondent filed the above-mentioned 

suit for permanent injunction

restraining the petitioner herein from interfering with the suit schedule

property. 

He has later on filed I.A.No.538 of 2011 under Order VI Rule 17 CPC

for amendment of the plaint in order to claim the relief of declaration of

title, recovery of possession and mandatory injunction to demolish the

structures. 

 It is the pleaded case of the respondent that 

initially an order of

status quo was granted on 17.11.2009, which was extended upto 14.12.2009, and  

that later on, due to non-functioning of the Court on account of an agitation,

the status quo order was not extended and

 that taking undue advantage of the

absence of the interim order, the petitioner has illegally encroached upon the

suit schedule property and raised the structures.

        The petitioner resisted the said application by pleading that by

permitting the amendment of the plaint, the whole nature and character of the

suit will undergo a radical change. 

She has further pleaded that the averments

relating to her encroaching upon the property and raising constructions after

the expiry of the order of status quo are totally false and 

that on such

averments, the amendment cannot be allowed. The lower Court, on consideration of

the rival pleas, allowed the application for amendment, by its order dated

13.03.2012. Feeling aggrieved by the said order, the petitioner filed this

Revision Petition.

        At the hearing, the learned counsel for the petitioner placed reliance on

the judgment in Sayanna and another v. Thimmanna and another1 in support of his

contention and 

submitted that as held by this Court in the said judgment, by

allowing the amendment of the respondent, the lower Court has allowed the whole

character of the suit altered.

        Learned counsel for the respondent submitted that the facts in Sayanna

(supra) are completely different and that the lower Court has considered the

said judgment and distinguished the same on the facts of the present case.

        I have carefully considered the submissions of the learned counsel for the

parties.

        Taking the second submission of the learned counsel of the petitioner

first,

 whether the averments on the basis of which the application for amendment

was filed are correct or not are not germane for consideration at the time of

considering the application for amendment.

 Such averments can be put to test

only in the trial.  

The only question that is relevant at the time of

considering the application for amendment is

 whether such amendment is 

permissible in law.  

The law is well settled that the plaintiff in a suit for

permanent injunction is entitled to seek amendment by claiming relief of

declaration of title and recovery of possession and that such amendment does not

alter the nature of the suit. (See Sampath Kumar, Appellant v. Ayyakannu and

another2)

        A perusal of the order of the lower Court would show that

 it has

considered the judgment in Sayanna (supra) and distinguished the same on the

facts of the present case. 

 In that case, this Court held that by allowing the

application for amendment, by which the plaintiff sought to plead adverse

possession, it would prejudice the interests of the defendant as he may be

denied the rights flowing under the Occupancy Rights Certificate under Section

38-E of the A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950.

 This

Court also observed that as the amendment was sought five years after filing of

the suit, the relief claimed by way of amendment was barred by limitation.

Therefore, in my opinion, the lower Court has rightly distinguished the judgment

in Sayanna (supra) and allowed the application of the respondent. 

Hence, I do

not find any error jurisdictional or otherwise in the order of the lower Court

allowing the application for amendment filed by the respondent.

        For the above-mentioned reasons, this Civil Revision Petition is

dismissed. 

        As a sequel, CRPMP.No.2305 of 2012 filed for interim relief is dismissed

as infructuous.

_______________________    

C.V.NAGARJUNA REDDY,J      

01.11.2012