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folder before |\r\n| | | C.M.A.No.174 of 2021 | corrections if
any. |\r\n| | | | Pl.verify. |\r\n| | | Heard
Sri K.G.Krishna
Murthy,
learned
Senior | |\r\n| | | Counsel for Sri K.Rama Mohan, learned counsel for the | |\r\n| | | appellant. | |\r\n| | | Admit. | |\r\n| | | Notice to the respondents. | |\r\n| | | List on 06.09.2021. | |\r\n| | | ______ | |\r\n| | | MVR,J | |\r\n| | | I.A.No.2 of 2021 | |\r\n| | | Heard. | |\r\n| | | There
shall
be
interim
stay
of
all
further | |\r\n| | | proceedings in I.A.No.359 of 2012 in O.S.No.2 of 1975 | |\r\n| | | on the file of the Court of learned Additional Senior | |\r\n| | | Civil Judge, Tirupati, until further orders. | |\r\n| | | Notice. | |\r\n| | | ______ | |\r\n| | | MVR,J
I.A.No.1 of 2021 | |\r\n| | | Heard. | |\r\n| | | In
the
circumstances,
the
respondents
are | |\r\n| | | restrained by means of ad interim
injunction from | |\r\n| | | making any further constructions or raising structures | |\r\n| | | or going on with any other activity changing the nature | |\r\n| | | of the property in respect of the plaint schedule | |\r\n| | | properties concerned to O.S.No.2 of 1975 on the file of | |\r\n| | | the Court of learned Additional Senior Civil Judge, | |\r\n| | | | |\r\n| | | Tirupati, until further orders. | |\r\n| | | Notice. | |\r\n| | | ______
MVR,J | |\r\n| | | Note: | |\r\n| | | Issue C.C. in two days.
B/o. | |\r\n| | | Pab | |\r\n| | | | |\r\n| | | | |\r\n| | | | |","aiAnalysis",{"_370":378,"_372":379,"_374":380,"_376":-5},"APHC010252132021-order-10.pdf","APHC010252132021-order-10.md","## HIGH COURT OF ANDHRA PRADESH AT AMARAVATI\r\n\r\n## MAIN CASE No. C.M.A.No.174 of 2021\r\n\r\n| | PROCEEDING SHEET | | | |\r\n|------------|------------------|---------------------------------------------------------------------------|----------------|--|\r\n| Sl.
No. | DATE | ORDER | OFFICE
NOTE | |\r\n| 5. | 28.03.2022 | MGR,J | | |\r\n| | | I.A.No.1 of 2022 | | |\r\n| | | This petition is filed under Order V | | |\r\n| | | Rule 20 of C.P.C. praying permission to | | |\r\n| | | serve the notice on the respondent Nos.13, | | |\r\n| | | 16, 17, 19, 20, 21, 22, 23, 24, 26, 30, 33, | | |\r\n| | | 38, 41, 42, 43, 46, 47, 48, 50 and 51 by | | |\r\n| | | way of substituted service. | | |\r\n| | | Heard
the
learned
counsel
for
the
petitioner/appellant. | | |\r\n| | | | | |\r\n| | | For
the
reasons
stated
in
the | | |\r\n| | | accompanying affidavit filed in support of | | |\r\n| | | the
petition,
this
petition
is
ordered | | |\r\n| | | permitting the petitioner to serve notice on | | |\r\n| | | the respondent Nos.13, 16, 17, 19, 20, 21, | | |\r\n| | | 22, 23, 24, 26, 30, 33, 38, 41, 42, 43, 46, | | |\r\n| | | 47, 48, 50 and 51
by way of substituted | | |\r\n| | | service
by
publishing
in
the
Sakshi, | | |\r\n| | | Eenadu
and
Hindu
daily
newspapers | | |\r\n| | | having
circulation
in
Tirupati
locality, | | |\r\n| | | Nellore
locality,
Vijayawada
locality
and | | |\r\n| | | Chittoor locality on or before 13.04.2022 | | |\r\n| | | and file proof of service into the Registry by | | |\r\n| | | 28.04.2022. | | |\r\n| | | _________ | | |\r\n| | | MGR,J | | |\r\n| | | C.M.A.No.174 of 2021 | | |\r\n| | | Post on 28.04.2022. | | |\r\n| | | _________ | | |\r\n| | | MGR,J
anr | | |",{"_370":382,"_372":383,"_374":384,"_376":-5},"APHC010252132021-order-11.pdf","APHC010252132021-order-11.md","## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATI**\r\n\r\n## **MAIN CASE No. C.M.A.Nos.214, 172, 173, 174, 215 and 216 of 2021**\r\n\r\n| Sl. | DATE | ORDER | OFFICE |\r\n|------------|------------|-------------------------------------------------------|--------|\r\n| No.
12. | 28.04.2022 | MGR,J | NOTE |\r\n| | | | |\r\n| | | Sri N.Gangadhar, learned counsel for | |\r\n| | | the
petitioner(s),
seeks
adjournment
to | |\r\n| | | advance
his
arguments
after
Summer | |\r\n| | | Vacation, 2022. | |\r\n| | | Sri
A.Prabhakar
Sarma,
learned | |\r\n| | | counsel for the respondents, states that he | |\r\n| | | filed
Cross-objection
No.14
of
2021
in | |\r\n| | | C.M.A.No.172 of 2021 and Cross-objection | |\r\n| | | No.3 of 2022 in C.M.A.No.215 of 2021. | |\r\n| | | Registry is directed to verify and put up | |\r\n| | | the said cross-objections. | |\r\n| | | Post on 23.06.2022. | |\r\n| | | _________ | |\r\n| | | MGR,J | |\r\n| | | anr | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n\r\n## **PROCEEDING SHEET**",{"_370":386,"_372":387,"_374":388,"_376":-5},"APHC010252132021-order-13.pdf","APHC010252132021-order-13.md","## 3HIGH COURT OF ANDHRA PRADESH\r\n\r\n## MAIN CASE NO.: **C.M.A.Nos.214, 172, 173, 174, 215 and 216 of 2021** PROCEEDING SHEET\r\n\r\n| Sl. | Date | ORDER | OFFICE |\r\n|-----|------------|--------------------------------|--------|\r\n| No. | | | NOTE |\r\n| | | | |\r\n| | 23.06.2022 | RC, J | |\r\n| | | | |\r\n| | | Post the matter on 07.07.2022. | |\r\n| | | | |\r\n| | | ________ | |\r\n| | | RC, J | |\r\n| | | AG | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":390,"_372":391,"_374":392,"_376":-5},"APHC010252132021-order-14.pdf","APHC010252132021-order-14.md","## HIGH COURT OF ANDHRA PRADESH\r\n\r\n## MAIN CASE NO.: **C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 And C.C.(SR) No. 32557 of 2021**\r\n\r\nPROCEEDING SHEET\r\n\r\n| Sl. | Date | ORDER | OFFICE |\r\n|-----|------------|--------------------------------|--------|\r\n| No. | | | NOTE |\r\n| | 07.07.2022 | RC, J | |\r\n| | | | |\r\n| | | | |\r\n| | | Post the matter on 21.07.2022. | |\r\n| | | | |\r\n| | | | |\r\n| | | ________ | |\r\n| | | RC, J | |\r\n| | | AG | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":394,"_372":395,"_374":396,"_376":-5},"APHC010252132021-order-15.pdf","APHC010252132021-order-15.md","## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI**\r\n\r\n# MAIN CASE NO.: **C.M.A.Nos.172, 173, 174, 214, 215,**\r\n\r\n## **216 of 2021, C.C.No.428 of 2022**\r\n\r\n### **and C.C.S.R.No.32557 of 2021**\r\n\r\n#### **PROCEEDING SHEET**\r\n\r\n| Sl.
No. | Date | ORDER | OFFICE
NOTE |\r\n|------------|------------|---------------------------------------------------------|----------------|\r\n| | 08.08.2022 | SRS,J | |\r\n| | | | |\r\n| | | At request of learned counsel on either side, list this | |\r\n| | | appeal on 16.08.2022. | |\r\n| | | ______ | |\r\n| | | SRS,J
ikn | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":398,"_372":399,"_374":400,"_376":-5},"APHC010252132021-order-16.pdf","APHC010252132021-order-16.md","## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI**\r\n\r\n## MAIN CASE : **C.M.A.No.172, 173, 174, 215, 216 of 2021,**\r\n\r\n## **C.C.No.428 of 2022 and C.C.S.R.No.32557 of 2021**\r\n\r\n## **PROCEEDING SHEET**\r\n\r\n| Sl. | Date | ORDER | | | | | | | OFFICE
NOTE |\r\n|-----|------------|-------------|-------|------|--------------|----|-------|-----------------|----------------|\r\n| No. | | | | | | | | | |\r\n| | 29.08.2022 | SRS,J | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | Post | along | with | C.M.A.No.214 | of | 2021, | on | |\r\n| | | 05.09.2022. | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | ______
SRS,J | |\r\n| | | | | | | | | ikn | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |\r\n| | | | | | | | | | |",{"_370":402,"_372":403,"_374":404,"_376":-5},"APHC010252132021-order-17.pdf","APHC010252132021-order-17.md","#### **HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI**\r\n\r\n## MAIN CASE : **C.M.A.Nos.172, 173, 174, 214, 215, 216 of 2021, C.C.No.428 of 2022 and C.C.(SR) No.32557 of 2021**\r\n\r\n#### **PROCEEDING SHEET**\r\n\r\n| Sl. | Date | ORDER | OFFIC |\r\n|-----|------------|---------------------------------------------------------------|-----------|\r\n| No. | | | E
NOTE |\r\n| | 07.09.2022 | SRS,J | |\r\n| | | I.A.No.2 of 2022
in | |\r\n| | | CMA No.214 of 2021 | |\r\n| | | This
interlocutory
application
is
filed
under | |\r\n| | | Order 5, Rule 20 of C.P.C, to permit the petitioners to | |\r\n| | | issue notice against the respondents 16, 17 and 44 to | |\r\n| | | 48 by way of substitute service. | |\r\n| | | Earlier, notices sent to the respondents 16, 17 | |\r\n| | | and 44 to 48 on 25-10-2021 were returned unserved | |\r\n| | | with
endorsements
\"party
left\"
and
\"no
such | |\r\n| | | addressee\". Proof of service was filed along with memo | |\r\n| | | on 16.11.2021. | |\r\n| | | Again notices
were
ordered on 13.08.2022 to the | |\r\n| | | respondents 16, 17 and 44 to 48 and they were | |\r\n| | | returned unserved with an endorsement \"no such | |\r\n| | | person in the address\".
Proof of service was filed
on | |\r\n| | | 28-8-2022. | |\r\n| | | In another connected CMA 173 of 2021, (wherein | |\r\n| | | respondents 16, 17 44 to 48 herein are also parties), | |\r\n| | | this Court ordered substitute service. Accordingly, | |\r\n| | | paper publication was filed and this Court recorded | |\r\n| | | the due service. | |\r\n| | | Since the respondents 16, 17 and 44 to 48 are | |\r\n\r\n| evading to receive the notice, I.A.No.2 of 2022 is | |\r\n|------------------------------------------------------------------|--|\r\n| ordered
permitting
the
learned
counsel
for
the | |\r\n| petitioners to take out notice on the respondents 16, | |\r\n| 17 and 44 to 48 by way of substitute service in | |\r\n| \"Eenadu\" daily news paper of Chittoor District edition | |\r\n| indicating the date of hearing as 10.10.2022. | |\r\n| ______ | |\r\n| SRS,J | |\r\n| | |\r\n| C.M.A.Nos.172, 173, 174, 214, 215, 216 of 2021, | |\r\n| C.C.No.428 of 2022 and C.C.(SR) No.32557 of 2021 | |\r\n| | |\r\n| List these appeals on 10.10.2022.
______ | |\r\n| SRS,J | |\r\n| KA | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n| | |\r\n\r\n# **HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI**\r\n\r\n## MAIN CASE : **C.M.A.No.275 of 2022**\r\n\r\n### **PROCEEDING SHEET**\r\n\r\n| Sl.
No. | Date | ORDER | OFFIC
E |\r\n|------------|------------|--------------------------------------------------------|------------|\r\n| | | | NOTE |\r\n| | 05.09.2022 | SRS,J | |\r\n| | | I.A.No.1 of 2022 | |\r\n| | | Notice to the respondents. | |\r\n| | | Learned counsel for the petitioner is permitted to | |\r\n| | | take out personal notice to the respondents 1 and 2 by | |\r\n| | | registered post with acknowledgment due and file | |\r\n| | | proof of service in the Registry. | |\r\n| | | List the matter 10.10.2022. | |\r\n| | | | |\r\n| | | ______ | |\r\n| | | SRS,J | |\r\n| | | ka | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n\r\n## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI**\r\n\r\n### MAIN CASE : **C.M.A.No.274 of 2022**\r\n\r\n#### **PROCEEDING SHEET**\r\n\r\n| Sl. | Date | ORDER | OFFIC |\r\n|-----|------------|----------------------|-------|\r\n| No. | | | E |\r\n| | | | NOTE |\r\n| | 05.09.2022 | SRS,J | |\r\n| | | | |\r\n| | | C.M.A.No.274 of 2022 | |\r\n| | | Admit | |\r\n| | | | |\r\n| | | Notice. | |\r\n| | | | |\r\n| | | ______ | |\r\n| | | SRS,J | |\r\n| | | ka | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":406,"_372":407,"_374":408,"_376":-5},"APHC010252132021-order-18.pdf","APHC010252132021-order-18.md","## HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI MAIN CASE: C.M.A.Nos.172, 173, 174, 215, 216 of 2021 C.C.No.428 of 2022 and C.C.(S.R.) No.32557 of 2021 PROCEEDING SHEET\r\n\r\n| $\\textbf{S1.}$
$\\boldsymbol{\\mathrm{No}}$ | $\\pmb{\\text{Date}}$ | ORDER | $\\qquad \\qquad \\textbf{OFFICE}$
$\\bold{NOTE}$ |\r\n|----------------------------------------------|---------------------|------------------------------------|--------------------------------------------------|\r\n| | $17.10.2022\\\\$ | $\\underline{\\textbf{SRS,J}}$ | |\r\n| | | | |\r\n| | | List these appeals on 01.11.2022, | |\r\n| | | under the same caption. | |\r\n| | | $\\text{SRS, J}$ | |\r\n| | | $\\mathrm{i} \\mathrm{k} \\mathrm{n}$ | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":410,"_372":411,"_374":412,"_376":-5},"APHC010252132021-order-19.pdf","APHC010252132021-order-19.md","## HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI\r\n\r\n## MAIN CASE No.: C.M.A.Nos.172, 173, 174, 214, 215, 216 of 2021 & 428 of 2022\r\n\r\n## PROCEEDING SHEET\r\n\r\n| Sl.No | $\\operatorname{DATE}$ | ORDER | Office
Note |\r\n|-------|-----------------------|-------------------------------------------------------------------|----------------|\r\n| | $10.11.2022\\\\$ | $\\underline{\\text{TRR, J}}$
Both learned counsel made
their | |\r\n| | | preliminary submissions and sought time for | |\r\n| | | detailed arguments. | |\r\n| | | Post these matters on $23.11.2022$ . | |\r\n| | | | |\r\n| | | $\\text{TRR, J}$ | |\r\n| | | $\\mathop{\\mathrm{AG}}\\nolimits$ | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":414,"_372":415,"_374":416,"_376":-5},"APHC010252132021-order-22.pdf","APHC010252132021-order-22.md","## **HIGH COURT OF ANDHRA PRADESH : AT AMARAVATI**\r\n\r\n## MAIN CASE No: C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 and\r\n\r\n## C.C.No.428 of 2022 and C.C (SR).No.32557 of 2021.\r\n\r\n## PROCEEDING SHEET\r\n\r\n| $S1.$
No. | DATE | ORDER | OFFICE
NOTE |\r\n|--------------|------------|-----------------------------------------------|------------------------------|\r\n| | 26.07.2023 | $DR.KMR,J$ | |\r\n| | | Heard the arguments of Sri K.G.Krishna | |\r\n| | | Murthy, leaned Senior Counsel appearing for | |\r\n| | | the appellants. | |\r\n| | | Sri M.R.S.Srinivas, learned counsel for | |\r\n| | | the appellant in CMA $No.172$ of 2021 is also | |\r\n| | | commenced his arguments but as this Court | |\r\n| | | having no time, for continuation of his | |\r\n| | | arguments adjourned the matters. | |\r\n| | | Post the matter on $27.07.2023$ at $2.15$ PM | |\r\n| | | under the caption \"Part-Heard\". | |\r\n| | | | |\r\n| | | DR.KMR,J | |\r\n| | | TPS | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":418,"_372":419,"_374":420,"_376":-5},"APHC010252132021-order-23.pdf","APHC010252132021-order-23.md","### **HIGH COURT OF ANDHRA PRADESH : AT AMARAVATI**\r\n\r\n#### MAIN CASE No: C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 and\r\n\r\n## C.C.No.428 of 2022 and C.C (SR).No.32557 of 2021.\r\n\r\n# **OFFICE** $S1.$ DATE **ORDER** $$ **NOTE** $02.08.2023$ | **DR.KMR,J** All the counsel appeared. Heard learned counsel for the appellants. For hearing arguments of respondents, post on 03.08.2023 under the same caption. DR.KMR,J $\\mathbf{K}\\mathbf{K}$\r\n\r\n#### PROCEEDING SHEET",{"_370":422,"_372":423,"_374":420,"_376":-5},"APHC010252132021-order-24.pdf","APHC010252132021-order-24.md",{"_370":425,"_372":426,"_374":427,"_376":-5},"APHC010252132021-order-25.pdf","APHC010252132021-order-25.md","## **HIGH COURT OF ANDHRA PRADESH : AT AMARAVATI**\r\n\r\n## MAIN CASE No: C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 and C.C.No.428 of 2022 and C.C.(SR).No.32557 of 2021\r\n\r\n## **PROCEEDING SHEET**\r\n\r\n| SI.
No. | DATE | ORDER | OFFICE
NOTE |\r\n|------------|------------|--------------------------------------------|-----------------------|\r\n| $02$ | 09.08.2023 | Dr. KMR,J | |\r\n| | | All the counsel appeared. | |\r\n| | | Both the Appellants counsel and | |\r\n| | | respondents counsel are argued the matter. | |\r\n| | | Mr.A.Prabhakar Sarma, learned counsel for | |\r\n| | | cross objector seeks time. | |\r\n| | | His request is considered. | |\r\n| | | Post the matter on 16.08.2023 under | |\r\n| | | the same caption. | |\r\n| | | | |\r\n| | | | |\r\n| | | Dr. KMR,J | |\r\n| | | BMS | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":429,"_372":430,"_374":431,"_376":-5},"APHC010252132021-order-26.pdf","APHC010252132021-order-26.md","# THE HON'BLE DR. JUSTICE K. MANMADHA RAO C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 and C.C.No.428 of 2022 and C.C (SR).No.32557 of 2021.\r\n\r\n#### COMMON JUDGMENT:\r\n\r\nThe C.M.A.No.214 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.6 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by setting aside the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.172 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.17 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by reversing the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.173 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.5 of 2020 on the file of Court of the V Additional District Judge, Tirupati, by reversing the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.174 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.6 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by reversing the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.215 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.17 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by setting aside the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.216 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.5 of 2018 on the file of Court of the V Additional District Judge, Tirupati, by setting aside the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe Contempt Case in C.C.No.428 of 2022 is filed under Section 10 to 12 of Contempt of Courts Act, 1971 to punish the respondents/ contemnors for Contempt of Court for willful and deliberate disobedience in not comply the orders passed by this\r\n\r\n2\r\n\r\nCourt dated 26.07.2021 in I.A.No.1 of 2021 in C.M.A.No. 173 of 2021.\r\n\r\nThe Contempt Case in C.C.(SR).No.32557 of 2021 is filed under Section 10 to 12 of Contempt of Courts Act, 1971 to punish the respondents/ contemnors for Contempt of Court for willful and deliberate disobedience in not comply the orders passed by this Court dated 26.07.2021 in I.A.No.1 of 2021 in C.M.A.No. 173 of 2021.\r\n\r\n 2. Since the facts and issue involved in all the Civil Miscellaneous Appeals and also Contempt Cases are one and the same, I find it expedient to decide these matters by a Common Judgment.\r\n\r\n 3. The parties will herein after be referred to as they are arrayed in the Original Suit for the sake of convenience.\r\n\r\n 4. For the sake of convenience, C.M.A.No. 214 of 2021 is taken as leading case.\r\n\r\n5. Initially the petitioners in I.A.No.359 of 2012 in O.S.No. 2 of 1975 on the file of on the file of the Court of Additional Senior Civil Judge, Tirupati (in short \"the trial court\") is filed under Order 26, Rule 13 and Section 151 of CPC, seeking to pass a final decree in pursuance of the preliminary decree dated 24.04.1982 and also appoint a Commissioner to divide the plaint 'B' 'C' and 'D' schedule\r\n\r\nproperties into two equal shares. The learned trial court allowed the application and final decree is passed in terms of preliminary decree. Assailing the same, the respective respondents therein have preferred an separate Appeals namely A.S.No. 5 of 2020, A.S.No.6 of 2021 and A.S.No.17 of 2021 on the file of the V Additional District Judge, Tirupati (in short \"the first appellate court\"). The appellant in A.S.No.17 of 2021 is not a party to the trial court in preliminary decree or final decree proceedings.\r\n\r\n6. The respondents 13 and 14 before the trial court filed counter, inter alia contended that Mr. Subba Naidu purchased 'B' schedule property and other properties from E. Rangaiah Naidu under two registered Sale Deeds dated 19.08.1968 and 04.12.1972 for valid consideration. There were several transactions took place and the respondents 13 and 14 purchased the said property from one Smt. Parvathamma under two registered Sale Deeds vide document Nos. 740 of 1999 and 741 of 1999. Since then they have been in possession and enjoyment of the same. The property purchased by the respondents 13 and 14 have to be allotted to E. Rangaiah Naidu i.e 1st defendant, who is vendor of Subba Naidu and subsequently to them. The respondents 13 and 14 prayed to allot the said land which is shown in 'B' schedule in the final decree petition to the 1st defendant's and in turn to the respondents 13 and 14.\r\n\r\n7. Based on the above pleadings, the learned First Appellate eventually framed the following issue for consideration:\r\n\r\n1. Whether the petitioner/ plaintiff in I.A.No. 359 of 2012 in O.S.No.2 of 1975 on the file of Additional Senior Civil Judge, Tirupati is entitled for the relief as prayed for?\r\n\r\n2. Whether the trial court has committed any error in allowing the petition in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of Additional Senior Civil Judge, Tirupati on 12.10.2017 and whether the said findings needs any interference of this appellate court in such finding?\r\n\r\n3. To What relief?\r\n\r\n8. After hearing on both the sides, the first appellate court allowed the appeals referred supra by setting aside the final decree and order dated 12.10.2017 passed by the learned trial court in I.A.No.359 of 2012 in O.S.No.2 of 1975 and remanded the suit to the trial court with a direction to re-entrust the warrant to the Advocate-Commissioner along with copy of preliminary decree and copy of the order of the Hon'ble Supreme Court in C.A.No.8416 of 1995, dated 11.09.1995 and give specific directions to the Advocate-Commissioner to work out the equities and to divide the suit schedule property as per the terms of preliminary by strictly following the observations given by the Hon'ble Supreme Court in C.A.No.8416 of 1995, dated 11.09.1995. Further the trial court is directed to dispose of the matter within three months. Assailing the said order, the present C.M.As came to be filed.\r\n\r\n 9. The appellants herein, who are respondents 12 and 13 in first appellate court set out the grounds in the appeal viz.,\r\n\r\na) that the first appellate court ought to have seen that both the parties have filed their brief notes, which was referred referred to at Para 9 of the order of the trial court, which was considered by the trial court and passed the order under Appeal, and also the Memo filed by the plaintiff/ D.Hr accepting to take the items shown in Blue Colour as per the Advocate Commissioner's Plan together with the boundaries. Having accepted to take the same, which amounts to admission under Section 17 of Evidence Act, 1872 cannot turn around and dispute the same. Even the parties to the final decree and the persons claiming through the plaintiff/ D.Hr did not file their objections to the Memo dated 04.03.2016 filed by the plaintiff/ D.Hr as such it amounts to a consent to pass the final decree, hence, no appeal is maintainable against the consent decree under Section 96(3) of CPC.\r\n\r\n b) The first appellate court ought to have seen that the counsel for the respondents 5 and 8 to 1 filed a brief note agreeing to take part of 'A' of the schedule property which is marked in Yellow Colour in the sketch filed by the Advocate-Commissioner along with report dated 07.01.2009, wherein the learned counsel for the plaintiff/ D.Hr endorsed No Objection to pass final decree and the Advocate has an authority and permission from a party to enter into a compromise. So also, the Hon'ble Apex Court neither disturbed nor directed to divide the property contrary to the preliminary decree. As such the appeal against the consent final decree without challenging the preliminary decree is not maintainable.\r\n\r\n c. The report of the Advocate Commissioner dated 07.01.2009 is in accordance with the preliminary decree, the common order dated 04.01.2003 in C.R.P.Nos. 5710, 5772 and 5801 of 2012 and the law laid down by the Hon'ble Apex Court order dated 11.05.1995 in C.A.No.8416 of 1995. The first appellate court ought to have seen that there were series of transactions took place, which clearly shows that the property were sold by the defendants 4, 5 and 8 to 11 during pendency of the suit and the final decree proceedings.\r\n\r\n d. The Court below ought to have seen that the Appellants in A.S.No.17 of 2021 have filed I.A.No.178 of 2008 in I.A.No.626 of 1983 in O.S.No.2 of 1975 to implead themselves by claiming to have purchased the property from Sri A. Jayaramaiah and Smt. K. Munemma, for a valid consideration on 20.04.1992 and the same was dismissed on 30.06.2008 and thereafter the society filed A.S.No.379 of 2018 before this Court, which was renumbered as A.S.No.17 of 2021 before the learned first appellate court, in addition thereto, the society has also filed O.S.No.169 of 2018 on the file of the first appellate court for the same relief. They have not questioned the dismissal of the I.A.No.178 of 2008, as such, they are prohibited from questioning the same under Section 105(2) of CPC and the Doctrine of Election to pursue two remedies for the same relief.\r\n\r\n e. The Court below ought to have seen that Sri Sivakesavulu, Advocate filed I.A.No. 5 of 2018 claiming 'C' schedule properties in his individual capacity, while the A.S.No.1361 of 2017 is filed against the Item No.1 of 'B' schedule properties, it is also alleged that Mr. Sivakesavulu has given authorization on his behalf and also on behalf of Commercial Tax Employees Cooperative House Building Society, Tirupati, Appellant in A.S.No.17 of 2001 to Mr. Rajender, President, to prosecute the matter on his behalf, however, he has been appearing as a counsel for the President of the society in O.S.No.169 of 2018 and A.S.No.17 of 2021, which is illegal and impermissible.\r\n\r\n f. The Lower Appellate Court ought to have seen that the memo dated 09.03.2021 filed by the counsel for the Appellants in A.S.No.17 of 2021 clearly indicates that the Respodnents 3 to 15 are not necessary parties and the same is also on record, however, the Lower Appellate Court did not make endorsement in the Judgment and Decree.\r\n\r\n g. The Lower Appellate court ought to have seen that the absence of the specific direction to the Advocate Commissioner to divide the suit schedule property as per the Preliminary Decree would not make any difference, as it was specifically mentioned\r\n\r\nin the warrant given to the Advocate Commissioner to divide the Item No.1 of the 'B', 'C' and 'D' schedule properties as per the preliminary decree, and the Commissioner's Report dated 07.01.2009 is in continuation of the report submitted on 28.04.2008, which clearly indicates that the absence of the copy of the Hon'ble Supreme Court order or the Preliminary Decrees does not make any difference and the omission to mention the Hon'ble Supreme Court order dated 11.09.1995 in C.A.No.8416 of 1995 does not make in difference as the said division is in accordance with the said judgment.\r\n\r\n 10. Heard Mr. K.G.Krishna Moorthy, learned Senior Counsel, representing Mr. K. Ramamohan, learned counsel, Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar, Mr. M.R.S.Srinivas appeared for the appellants and Mr. P. Veerraju, Mr. Dasari S.V.V.S.V.Prasad, Mr.Narasimha Rao Gudiseva and Mr.Ch.Venkat Raman, Mr.S.Srinivas Reddy, learned counsel appeared for the respondents.\r\n\r\n 11. During hearing Mr. K.G.Krishna Moorthy, learned Senior Counsel, representing Mr. K. Ramamohan, learned counsel, Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar, Mr. M.R.S.Srinivas, learned counsel for the appellants reiterated the contents urged in the grounds of appeal and placed on record the decision of composite High Court at Hyderabad in \"G. Subramanyam (died) by L.Rs vs. B.\r\n\r\n8\r\n\r\n**Raghunath (died) by L.Rs^\"1** wherein learned Single Judge held as follows:-\r\n\r\n> \"11.....To substantiate the argument, learned Counsel for the petitioners-judgment debtors has drawn the attention of this Court to the decision in Dr. Chiranji Lal (D) by LRs v. Hari Das (D) by LRs, (2005) 10 SCC 746; wherein the Hon'ble apex Court *held at Para Nos. 2, 25 and 26 as follows:*\r\n\r\n> *2. The question that arises for determination in this matter* is when would the period of limitation for execution of a decree passed in a suit for partition commence. In other words, question is when such a decree becomes enforceable, from the date when the decree is made or when the decree is engrossed on the stamp paper, which, out of these two, would be the starting *point of limitation?*\r\n\r\n> 25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree *cannot be made to depend upon date of the engrossment of such* a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domine, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the Court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeswant Deorao Deshmukh v. Watchand Ramchand Kothari, AIR 1951 SC 16, it was said that the payment of Court fee on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there;\r\n\r\n $12017(4)$ ALD 638\r\n\r\nit was a decree capable of execution from the very date it was passed.\r\n\r\n 26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As above noted, there is no statutory provision prescribing a timelimit for furnishing of the stamp paper for engrossing the decree or time-limit for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for engrossing of the decree or there is no time-limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. .......\r\n\r\n Learned counsel for the appellants would contend that the engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domine, purview and control of a party, which rightly held by the composite High Court in the decision cited supra.\r\n\r\n 12. Further, he relied on a decision of the Hon'ble Supreme Court in \"Katikara Chintamani Dora and Others vs.\r\n\r\n**Guatreddi Annamanaidu and Others**² wherein it was held as follows:\r\n\r\n> \"56. Order 23, Rule 3, Code of Civil Procedure, not only permits a partial compromise and adjustment of a suit by $a$ lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise of adjustment in so far as it relates to the suit. If the compromise *agreement was lawful- and as we shall presently discuss it was* to – the decree to the extent it was a consent decree, was not appealable because of the express bar in Section 96(3) of the Code.\r\n\r\nTherefore, learned counsel for the appellants herein would contend that as per order 23, rule 3 of C.P.C speaks if the compromise agreement was lawful, the decree to the extent it was a consent decree, was not appealable because of express bar in Section 96(3) of the C.P.C. $\\Box$ \r\n\r\n13. learned counsel for the appellants drawn the attention of this Court with regard to Section 96(3) of CPC and Order 23, rule 3 of CPC and contended that a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made and the same has been discussed by the Hon'ble Apex Court in\r\n\r\n $^{2}$ AIR 1974 SC 1069\r\n\r\n# \"Pushpa Devi Bhyagat vs. Rajinder Singh and Others\"³ wherein it was held as follows:\r\n\r\n\"17. The position that emerges from the amended *provisions of Order 23 can be summed up thus:* \r\n\r\n(i) No appeal is maintainable against a consent decree *having regard to the specific bar contained in Section 96(3) CPC.* \r\n\r\n(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in *view of the deletion of clause(m) of Rule 1 Order 43.* \r\n\r\n(iii) No independent suit can be filed for setting aisde a compromise decree on the ground that the compromise was not *lawful in view of the bar contained in Rule 3-A.* \r\n\r\n(iv) A consent decree operates as an estoppels and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.\r\n\r\nTherefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a *valid compromise or not. This is so because a consent decree is* nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise *on which it is made......\"* \r\n\r\n $^{3}$ (2006) 5 SCC 566\r\n\r\nAnd also relied on a decision of the High Court of Madras in \"Gemini Pictures Circuit P. Ltd., rep., by its Chief Manager vs. **M. Ramaswamy and Another⁷⁴** wherein it was held as follows:\r\n\r\n> 8. Order XXIII, Rule 3 of the Code of Civil Procedure provides for passing of a decree on a memo of compromise entered into between the parties during the pendency of a suit by which the claim is satisfied or adjusted. Before amendment made in 1976 oral settlement was also permissible and in the amendment, the same is excluded. The compromise should not *be recorded in a casual manner, but the Court has to first satisfy* with the memo of compromise which has been entered into between the parties is lawful, before accepting the same and must apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement. Once such a proof of compromise is accepted by the Court, it becomes the order of the Court and acquires the sanctity of a judicial order. Such an adjustment and compromise are necessary to have a speedy disposal of cases with a view to relieving the litigants and the Courts from the burden of mounting arrears. It is well settled that the counsel can also *enter into compromise on behalf of the parties.*\r\n\r\n> 9. In the decision reported in Byram Pestonji Gariwala $v$ . Union of India, 1992 (1) SCC 31, the Apex Court has taken the *said view and held as follows:*\r\n\r\n\"37. We may, however, hasten to add that it will be *prudent for counsel not to act on implied authority except* when warranted by the exigency of circumstances *demanding immediate adjustment of suit by agreement or* compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and *quicker communication, such contingency may seldom* arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority\r\n\r\n^<sup>4 2002 SCC OnLine Mad 807\r\n\r\nexpressed in writing to meet all such contingencies in order that neither his authority not integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.\r\n\r\n38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.\"\r\n\r\n 10. The scope of appreciation of the memo of compromise by Courts has been dealt with by the Apex Court in the decision in Banwarilal v. Chando Devi, 1993 (1) SCC 581, holding as follows:\r\n\r\n> \"13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, \"the Court shall decide the question\", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise \"which is void or\r\n\r\nvoidable under the India Contract Act...\" shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.\"\r\n\r\n14. Order XXIII, Rule 3 of the Code of Civil Procedure provides for passing of a decree on a memo of compromise entered into between the parties during the pendency of a suit by which the claim is satisfied or adjusted. Before amendment made in 1976 oral settlement was also permissible and in the amendment, the same is excluded. The compromise should not be recorded in a casual manner, but the Court has to first satisfy with the memo of compromise which has been entered into between the parties is lawful, before accepting the same and must apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement. Once such a proof of compromise is accepted by the Court, it becomes the order of the Court and acquires the sanctity of a judicial order.\r\n\r\n 15. Further it is further contended that the Apex Court in the decision in \"Banwarilal v. Chando Devi\",5 clearly held that in\r\n\r\n⁵ 1993 (1) SCC 581\r\n\r\nview of the proviso Rule 3 of Order 23 read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code.\r\n\r\n 16. Mr.Ch.Venkat Raman, learned counsel appearing for the respondents in C.M.A.No.172 of 2021 placed on record the chronological events in the batch C.M.As and also copy of the Judgment of the Hon'ble Supreme Court dated 11.09.1995 in Civil Appeal No. 8416 of 1995, which was filed by Mr. K. Adivi Naidu and others against Mr. E. Durvasulu Naidu and others, wherein it was held as follows:\r\n\r\n> \"Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final the trial court need to give effect to it. It is settled law that alienees of the alienees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other co-parceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to with their principal alienor was entitled would be allotable to them as a special case. However, since the preliminary decree specifically\r\n\r\ndirected that the good and bad qualities of the land should be taken into consideration in effecting the partition. It should, in letter and spirit, be given effect to while passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well. Considered from this perspective, the direction issued by the Division Bench would be modified above, and the trial court would pass the final decree accordingly.\r\n\r\n And also placed on record the interim order dated 05.01.2018 in I.A.No.2 of 2018 in A.S.No.1361 of 2017, wherein the Hon'ble Division Bench of the composite High Court at Hyderabad held as follows:\r\n\r\n> \"Perusal of the judgment under appeal reflects that it is not in keeping with the order of the Supreme Court in as much as there is not even a reference to the valuation of the properties in question. That apart, the land allegedly purchased by the appellants, which ought to have been allotted to the share of the vendors, seems to have been equally divided\".\r\n\r\n 17. Mr.Ch.Venkat Raman, learned counsel appearing for the respondents placed on record the common Judgment dated 05.01.2021 of the Hon'ble Division Bench of this Court, wherein it was holding that the appeals in A.S.No.1361 of 2017 and A.S.No.302 and 379 of 2018 were returned to the appellants to present the same before the appropriate District Judge, who would have jurisdiction, to decide the batch appeals in accordance with\r\n\r\nlaw. Further this Court directed the parties to maintain status quo for a period of four weeks. Assailing the same Mr. E. Durvasulu Naidu filed petition for Special Leave to Appeal (C) Nos. 3388-3390 of 2021 and the Hon'ble Apex Court dismissed the same on 02.03.2021, while directing the District Court to expedite the hearing of the appeals and dispose them of within a period of six months.\r\n\r\n 18. Mr.Ch.Venkat Raman, learned counsel appearing for the respondents would contend that it is settled law that alienees of the alienees have no right to equities. So also it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other co-parceners. Since the properties were purchased prior to the institution of the suit for partition, though the appellants in C.A.No.8416 of 1995 have no right to equities, it could be said that the respective share to with their principal alienor was entitled would be allotable to them as a special case. Further, the preliminary decree passed directed to divide the suit schedule properties by mates and bounds with reference to the good and bad qualities as held by the Hon'ble Apex Court and given finding that if the lands purchased by the appellants therein are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained\r\n\r\nand the respondents need to be compensated in monetary value and modified the order of the learned Division Bench and directed to pass final decree. Therefore it is contended that there is no need or necessity to restart the issues further and no clarification is required in any aspects. Therefore the C.M.As are liable to be dismissed.\r\n\r\n 19. Mr. P.Veerraju, Mr. Dasari S.V.V.S.V.Prasad, Mr. Narasimha Rao Gudiseva and Mr.Ch.Venkat Raman, Mr.S.Srinivas Reddy, learned counsel appearing for the respondents vehemently opposed to allow the C.M.As, as it is a speculative litigation and strongly argued at length by explaining the legal aspects.\r\n\r\n 20. The appellant/ third party in A.S.No.17 of 2021, who is 1st respondent in C.M.A.No.215 of 2021 has filed Cross Objections No.3 of 2022 in C.M.A.No.215 of 2021, wherein he raised the following grounds viz.,\r\n\r\n> a) the court below ought to have seen that the Cross Objector herein raised the ground that both the Preliminary Decree and Final Decree are vitiated by fraud and that both the Preliminary Decree and the Final Decree are collusive proceedings between the plaintiff, defendant No.1, defendant No.2, respondents 1 and 2 herein i.e the appellants in C.M.A.No.215 of 2021. The court below failed to take note of the same.\r\n\r\n> b) The Court below ought to have seen that defendant No.1 and 2 (father and mother of the plaintiff) who have specifically pleaded in their respective written statements that C-Schedule\r\n\r\nproperties are self acquired properties of plaintiff and his mother- defendant No.2, and that it is not amenable for partition, remained exparte in the suit to facilitate the fraud that was being committed by the plaintiff. Hence, the entire suit is a collusive proceedings vitiated by fraud.\r\n\r\n c) The Court below ought to have seen that the alleged will which is unmarked and not established, is also suspicious as the defendant No.1, who had categorically pleaded in his Written Statement that the suit schedule properties are not joint family properties and are not amenable for partition, could not have acted to the contrary, and execute a will bequeathing his share in the alleged joint family property to the so called legatees who are complete strangers and unconnected to the plaintiff's family, unless the defendant No.1 was also party to the fraud and he also colluded with the plaintiff.\r\n\r\n d) The court below ought to have seen that the Hon'ble Supreme Court of India in S.P.Chengalvarayudu vs. K. Jagannathan 1994(1) SCC 1 further held that when the plea of fraud is raised, the stage and that the finality of litigation becomes immaterial in the following words:\r\n\r\n\"The principle of \"finality of litigation\" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often that not, process of the court is being abused. Property-grabbers, tax-evaders, bankloan dodgers and other unscrupulous persons from all walks of life find that court-process a convenient level to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation\".\r\n\r\n*Hence, the plea of finality of preliminary decree and other* considerations are also of no avail and the lower appellate court *ought to have considered the same.* \r\n\r\n*e) The court below failed to consider that the vendors of* the Cross objectors, who were respondents 6 and 7 in I.A.No.359 of 2012 in O.S.No.2 of 1975 died pending the Final Decree Proceedings, and the plaintiff ought to have brought on record, the Legal Heirs of the Cross Objector's vendors or at least the Cross Objector herein who is the Successor-in-Interest. The plaintiff resided in the same small village in which the vendors of the Cross objectors resided and hence he was very well aware of the fact that the vendors of the cross objectors died. Hence, the lower appellate court ought to have seen that the *final decree was passed against dead respondents\".* \r\n\r\n21. Mr. Ashok Anand Kumar, learned Senior Counsel for the appellants placed on record the catena of decisions of Hon'ble Apex Court with regard to maintainability of Appeal under Order 43, rule $1(u)$ of C.P.C and the dealt with in \"Narayanan vs. **Kumaran and Others**⁷⁶ wherein it was held as follows:\r\n\r\n> \"17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43, Rule 1, clause (u) should be *heard only on the ground enumerated in Section 100......\"*\r\n\r\n $6$ (2004) 4 SCC 26\r\n\r\nAnd also placed on record the decision of the Hon'ble Apex Court in \"J. Balaji Singh vs. Diwakar Cole and Others\"⁷ wherein it was held that order 41, rule 23 enables the appellate court to remand the case to the trial court when it finds that the trial court has dispose of the suit upon a preliminary point. The appellate court in such cases is empowered to direct the trial court to decide all the issues on evidence on record. Further Rule 23-A is concerned, the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all issues, but on reversal of the decree in appeal, a retrial is considered necessary by the appellate court. Further the appellate court in such case may frame the issues and refer the same to the trial court to take the evidence and record the findings on such issues and return to the appellate court for deciding the appeal. In such cases, the appellate court retains the appeal to itself.\r\n\r\n22. Mr. M.R.S.Srinivas, learned counsel for the appellants placed on record the decision of the Hon'ble Apex Court in \"Kaushlya Devi and Others vs. Baijnath Sayal (deceased) and **Others^\"8** wherein it was held as follows:\r\n\r\n> \"11. If the preliminary decree passed in the present proceedings without complying with the provisions of Order 32, *Rule* $7(1)$ *is not a nullity but is only voidable at the instance of*\r\n\r\n $7$ (2017) 14 SCC 207\r\n\r\n $\\frac{8}{1961}$ 3 SCR 769: AIR 1961 SC 790\r\n\r\nthe appellants, the question is: can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of section 97 of the Code is urged against the appellants. Section 97, which has been added in othe Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree\".\r\n\r\nHe relied on a decision in **\"Venkata Reddy and Others vs.**\" **Pethi Reddy**^\"9 wherein it was held as follows:\r\n\r\n> 5. The new provision makes it clear that the law is and has always been that upon the father's insolvency his disposing power over the interest of his undivided sons in the joint family *property vests in the Official Receiver and that consequently the* latter has a right to sell that interest. The provision is thus *declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here* only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent court. The short question, therefore, Is whether the preliminary decree for partition passed in this case which was affirmed finally in second appeal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since *the rights of the parties are adjudicated upon by the court before* a preliminary decree is passed that decree must, insofar as rights adjudicated upon are concerned, be deemed to be a final\r\n\r\n^<sup>9 1963 Supp (2) SCR 616: AIR 1963 SC 992\r\n\r\ndecision. The word decision even in its popular sense means a concluded opinion (see Stroud's judicial Dictionary 3rd Edn.Vol.I, p. 743) Where, therefore, the decision is embodied in the judgment which is is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal review or revision petition as provided for by law. The High Court has, however, observed:\r\n\r\n \"The, mere declaration of the rights as the plaintiff by the preliminary decree, would, in our opinion not amount her final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, There are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final.\"\r\n\r\nIt is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be \"modified and amended\". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment.Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree\r\n\r\nwhich would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.\r\n\r\n## 23. In \"Banwari Lal vs. Chando Devi (smt) (through L.Rs)\r\n\r\nand Another\"¹⁰ wherein it was held as follows:-\r\n\r\n\"8. Earlier under Order 43, Rule 1(m) an appeal was maintainable against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act aforesaid that clause has been deleted, the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order 23. Being conscious that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1-A has been added to Order 43, which is as follows:\r\n\r\n \"1-A. Right to challenge non-appelable orders in appeal against decree –(1) where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should\r\n\r\n¹⁰ (1993) 1 SCC 581\r\n\r\nnot have been made and the judgment should not have been pronounced.\r\n\r\n (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded\".\r\n\r\n 24. Upon perusal of the entire material on record, the following substantial issues have been involved to decide the batch C.M.As, which are as under:\r\n\r\na) Whether the order passed under Section 23, rule 3 of CPC is appealable or not?\r\n\r\n b) Whether the appeal is maintainable, though it is a compromise decree as contended by the appellants?\r\n\r\n## c) Whether the impleaded respondents in the matter are having right over the property in pursuant to the orders in S.L.P(C) No. 8416 of 1995?\r\n\r\n 25. As could be seen from the Report of the Advocate Commissioner in I.A.No.626 of 1983 in O.S.No.2 of 1975the division of each survey number in to two shares i.e half and half; as it is not easy and convenient to enjoy them since the nature of the above said survey numbers do not connect with the areas of another divided survey number to have ingress and egress to the main road for the entrance and also do not have access to one area to another in divided survey numbers without causing interference to the divided share of other sharer. The division of all the lands in\r\n\r\nblock 'I' of Ac. 10.65 cents and block 'II' of Ac. 14.72 acres do have equal values and do have access to the main road and also access to the areas of other survey numbers in the divided shares without causing any sort of interference to the areas of the other divided share. Thus, the Advocate-Commissioner have divided Ac. 25.37 cents in Item No.1 of 'B' schedule property into two equal shares as per the values and also as per extent wise as detailed above by taking into consideration in good and bad qualities; and the values; and conveniences; for both sharers to enjoy their respective shares without entering in the other share of lands.\r\n\r\n 26. Objections were filed by the respondents 6 and 7 before the trial court against the Commissioner Report and contended that the commissioner has not mentioned in his report the wide contrast between Item No.1 of 'B' schedule and 'C' schedule properties pertaining to values, since Item No.1 of 'B' schedule is situated besides 100 feet road and quite opposite to a three star hotel, which is having commercial value; whereas 'C' schedule property is situated far away from 100 ft., road situated besides a Dhalithwada in the interior area near the forest without permanent and proper approach road.\r\n\r\n 27. Since objections were raised by the respondents 6 and 7 before the trial court re-entrusted the warrant to the Advocate Commissioner, who executed the warrant again and filed all\r\n\r\nsketches relating to all the survey numbers in Item 1 and 2 and extents therein have been divided into two equal parts and the same have been demarcated and delineated in the sketches. Later a Memo has been filed by the plaintiff/ D.Hr in I.A.No.359 of 2012 in O.S.No.2 of 1975, wherein it was stated that he is also willing to take part 'B' lands in each survey number. Since the respondents therein filed Memo to that effect that A part may be allotted to them and to their principal alienor, the remaining part 'B' lands may be allotted to the share of the plaintiff/ D.Hr.\r\n\r\n 28. Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar would contend that the learned counsel for the petitioner before the trial court has given written consent and reported no objection for partition to take part 'B' portion each survey number shown in blue wash by the advocate commissioner's combined sketch filed along with his report dated 07.01.2009, which endorsement is made on 20.04.2012. Therefore there is nothing else to be decided and it vitiated clear consent for passing final decree.\r\n\r\n 29. The trial court appointed an Advocate Commissioner to divide the of 'B', 'C; and 'D' schedule properties in terms of preliminary decree and the Advocate Commissioner duly executed the warrant and filed report. Basing on report of the Advocate Commissioner final decree was passed in I.A.No.626 of 1990,\r\n\r\n28\r\n\r\ndated 04.06.1990, which was questioned by the plaintiff and the 1st defendant in A.S.No.2391 of 1990 and A.S.No.1183 of 1991 respectively, which was dismissed on 06.08.1991. Later L.P.A.No.261 of 1991 was filed by the plaintiff questioning the same was allowed and the matter was remanded on 24.08.1994, assailing the same, Mr. K. Adivi Naidu and others filed SLP(C) No. 8416 of 1995, which was allowed as per the orders dated 11.05.1995 in Civil Appeal No.8416 of 1995. Upon remand I.A.No.359 of 2012 was taken up by the trial court for passing a final decree. During the pendency of the said application, respondents 6 to 12, 15 and 16 were added, by the orders of the trial court. The implead applications of respondents No.13 and 14 were rejected by the trial court. In C.R.P.No.5710, 5772 and 5801 of 2012 filed against the said order of rejection, the erstwhile High Court of Andhra Pradesh set aside the said order of rejection. Consequently the trial court added respondents 13 and 14.\r\n\r\n 30. The trial court appointed an Advocate- Commissioner, who filed report dated 07.01.2009, basing on his report, final decree was passed on 12.10.2017. Aggrieved by the same, three appears in A.S.No.1361 of 2017, A.S.No.302 of 2018 and A.S.No.379 of 2018 have been filed before this Court and the Hon'ble Division bench of this Court returned the appeals to the appellants to present the same before the appropriate District\r\n\r\nJudge having jurisdiction to decide the same in accordance with law as the appeals are not maintainable before this Court and granted protection of status quo for a period of four weeks on 05.01.2021.\r\n\r\n# a) Whether the order passed under Section 23, rule 3 of CPC is appealable or not?\r\n\r\n 31. Mr. K. Adivi Naidu and Others filed Civil Appeal No.8416 of 1995, wherein the Hon'ble Apex Court passed the detailed order therein very specifically, which already extracted supra. Whereas, in A.S.No.17 of 2021, the first appellate court, which arising out of the order passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 holding that the matter is remanded to the trial court with a direction to re-entrust the warrant to the Advocate Commissioner along with relevant copies of documents to divide the suit schedule property as per the terms of preliminary decree by strictly following the observations given by the Hon'ble Apex Court in C.A.No.8416 of 1995, dated 11.09.1995, which is unwarranted in the light of the findings given by the Hon'ble Apex Court as cited supra.\r\n\r\n 32. The Hon'ble Apex Court made specific observation in its order dated 11.09.1995, since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to with their principal alienor was entitled would\r\n\r\nbe allotable to them as a special case. It is further observed that since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition. It should, in letter and spirit, be given effect to while passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well and directed the trial court would pass the final decree accordingly. Therefore there is no need or necessity to look beyond the findings given by the Hon'ble Court.\r\n\r\n 33. In view of the said scenario, this Court finds that the appellants before the first appellate court has no locus standi to file appeals, challenging the I.A.No.359 of 2012 in O.S.No.2 of 1975 by way of Appeal, as it comes under proviso in C.M.A. Further, the first appellate court has travelled beyond the scope of the findings given by the Hon'ble Apex Court. When there are clear findings apparent on the face of record in its order, which passed in the year 1995, the first appellate court erred in remand the matter back to the trial court is not justifiable. The Advocate-Commissioner Report holds good and no need to get further clarification with regard to value and other aspects.\r\n\r\n 34. By taking into consideration of the true letter and spirit of the order of the Hon'ble Apex Court, this Court finds that it is unnecessary to touch the preliminary decree passed by the learned trial court. Further it is observed that the Civil Appeal No. 8416 of 1995 was filed in the year 1995, whereas final decree application was filed in the year 2012 i.e after long elapse of 17 years and that juncture, so many transactions took place, while the matters are being pending before the court of law and created third party interest, who are added as parties subsequently. These issues cannot be looked into at this stage as per decision of the Hon'ble Apex Court in C.A.No.8416 of 1995. Therefore in these matters, third party purchasers' rights cannot be decided. If the same is taken into consideration, it is nothing but restarts the trial and cause great injustice to the parties and very purposing of passing final decree will be defeated.\r\n\r\n 35. In view of the same, as per Section 23, rule 3 of C.P.C is not applicable to file appeal before the first appellate court in the light of the decision in \"Katikara Chintamani Dora's Case (cited 2nd supra) and \"Pushpa Devi Bhyagat's case (cited 3rd supra) Accordingly answered in favour of the appellants herein.\r\n\r\n## b) Whether the appeal is maintainable, though it is a compromise decree as contended by the appellants?\r\n\r\n 36. A Memo has been filed by the plaintiff i.e E. Durvasulu Naidu in O.S.No.2 of 1975 stating that the plaintiff is not claiming his share in 'B' schedule property item as a settled the dispute is settled with the heirs of P. Rajamma and sold the same to G. Ganapati and another under Registered Sale Deeds dated 06.02.1995. Hence requested to delete the said property i.e S.No.220 an extent of Ac. 1.50 cents from the plaint schedule.\r\n\r\n 37. It is contended by the learned counsel for the appellants that when there was compromise decree passed, question of filing the appeal against the decree does not arise?. It is apparent on the face of the record to effect no objection to pass final decree as per endorsements. As per decision in \"Narayanan's case (cited 6th supra) as per Order 43, rule 1(u) of C.P.C an appeal should be heard only on the ground enumerated in Section 100 of C.P.C. Therefore no doubt it is a consent and compromise decree, which cannot be appealable. On that score also, the Appeal is not maintainable before the first appellate court.\r\n\r\nc) Whether the impleaded respondents in the matters are having right over the property in pursuant to the orders in S.L.P(C) No. 8416 of 1995?\r\n\r\n 38. Since there is no legal infirmity or latches, but there is subsequent alienations and created charge to third parties, who are also added as parties to the proceedings in the midst, though\r\n\r\n33\r\n\r\nthe matter is subjudice between the parties in the court of law. Therefore, it is highly difficult to take into consideration of all subsequent transactions that too after passing preliminary decree is meaningless, which are unconnected to the suit. Therefore, it is needless to take into consideration of those aspects. Therefore the point is answered accordingly.\r\n\r\n 39. In view of the facts and circumstances stated above, this Court came to a conclusion that the decisions cited by the respondents are not applicable within the parameters of the Judgment of the Hon'ble Apex Court in Civil Appeal No. 8416 of 1995, so also cross objections filed by the respondents.\r\n\r\n 40. Viewing from in any angle, it is made clear that the first appellate court created a new litigation between the parties, which is highly untenable. Under these circumstances, I have no hesitation to say that the batch C.M.As has to be allowed in to-to.\r\n\r\n 41. Since this Court is inclined to allow the batch C.M.As the Contempt Cases closed, as the issues considered on merits and Common Judgment is passed in main C.M.As.\r\n\r\n 42. In the result, the batches C.M.As are allowed and both Contempt Cases are closed by a Common Judgment. There shall be no order as to costs.\r\n\r\n As a sequel, miscellaneous applications pending, if any, shall also stand closed.\r\n\r\n## \\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_ DR.K. MANMADHA RAO, J\r\n\r\nDate: 28.08.2023\r\n\r\nNote: L.R copy marked B/o KK\r\n\r\nTHE HON'BLE DR. JUSTICE K. MANMADHA RAO\r\n\r\n## C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 and C.C.No.428 of 2022 and C.C (SR).No.32557 of 2021.\r\n\r\nDate: 28.08.2023\r\n\r\nNote: L.R copy marked B/o KK\r\n\r\n## IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI\r\n\r\n## + C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021 and C.C.No.428 of 2022 and C.C (SR).No.32557 of 2021.\r\n\r\n% 28.08.2023\r\n\r\n## C.M.A.No.214 of 2021\r\n\r\n| # Smt. Aipala Kasturi and another
Vs. | … Appellants. | |\r\n|------------------------------------------|----------------|--|\r\n| \\$ Sri Kilari Rama Naidu and Others | … Respondents. | |\r\n| C.M.A.No.172 of 2021 | | |\r\n| # E. Durvasulu Naidu | | |\r\n| Vs. | … Appellant. | |\r\n| \\$ E. Rangaiah Naidu (Died) and Others | … Respondents. | |\r\n| C.M.A.No.173 of 2021 | | |\r\n| # E. Durvasulu Naidu | | |\r\n| Vs. | … Appellant. | |\r\n| \\$ E. Yengamma and Others | … Respondents. | |\r\n| C.M.A.No.174 of 2021 | | |\r\n| # E. Durvasulu Naidu | | |\r\n| Vs. | … Appellant. | |\r\n| \\$ E. Rangaiah Naidu and Others | … Respondents. | |\r\n| C.M.A.No.215 of 2021 | | |\r\n| # Smt. Aipala Kasturi and another | … Appellants. | |\r\n\r\nVs.\r\n\r\n| C.M.A.No.216 of 2021 | | | |\r\n|--------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--|--|\r\n| # Smt. Aipala Kasturi and another | … Appellants. | | |\r\n| Vs. | | | |\r\n| \\$ Smt. Sadu Amruthavalli and Others | … Respondents. | | |\r\n| C.C.No.428 of 2022 | | | |\r\n| # E. Durvasulu Naidu | … Appellant. | | |\r\n| Vs. | | | |\r\n| \\$ Kilari Ratna Naidu and Others | … Respondents. | | |\r\n| C.C (SR).No.32557 of 2021 | | | |\r\n| # E. Durvasulu Naidu | | | |\r\n| Vs. | … Appellant. | | |\r\n| \\$ Sri Nitin Prasad and another | … Respondents. | | |\r\n| ! Counsel for the Appellants | :
Mr.K.G.Krishna
Moorthy,
learned
Senior Counsel,
representing Mr.
K.
Ramamohan,
learned
counsel,
Mr.Ashok Anand Kumar, learned Senior
Counsel,
representing
Mr.
N.
Gangadhar, Mr. M.R.S.Srinivas | | |\r\n| ! Counsel for the Respondents: | Mr.
P.
Veerraju,
Mr.
Dasari
S.V.V.S.V.Prasad,
Mr.Narasimha
Rao
Gudiseva
and
Mr.Ch.Venkat
Raman,
Mr.S.Srinivas Reddy, | | |\r\n\r\n\\$ Tirupati Circle Commercial Taxes Employees Co-operative House Building Society, Tirupati\r\n\r\nRep., by its President Sri P. Rajendra Babu and Others\r\n\r\n< Gist:\r\n\r\n… Respondents.\r\n\r\n> Head Note:\r\n\r\n? Cases referred:\r\n\r\n- 1. 2017(4) ALD 638\r\n- 2. AIR 1974 SC 1069\r\n- 3. (2006) 5 SCC 566\r\n- 4. 2002 SCC OnLine Mad 807\r\n- 5. 1993(1) SCC 581\r\n- 6. (2004) 4 SCC 26\r\n- 7. (2017) 14 SCC 207\r\n- 8. (1961) 3 SCR 769: AIR 1961 SC 790\r\n- 9. 1963 Supp(2) SCR 616 : AIR 1963 SC 992\r\n- 10.(1993) 1 SCC 581\r\n\r\n## DATE OF ORDER PRONOUNCED: 28.08.2023\r\n\r\n#### \\* THE HON'BLE DR. JUSTICE K. MANMADHA RAO\r\n\r\n| 1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? | Yes/No |\r\n|----------------------------------------------------------------------------------|--------|\r\n| 2. Whether the copies of judgment may be
Marked to Law Reporters/Journals. | Yes/No |\r\n| 3. Whether Their Ladyship/Lordship wish
to see the fair copy of the Judgment? | Yes/No |\r\n\r\n#### \\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_ DR.K. MANMADHA RAO, J",{"_370":433,"_372":434,"_374":435,"_376":-5},"APHC010252132021-order-27.pdf","APHC010252132021-order-27.md","# THE HON'BLE DR. JUSTICE K. MANMADHA RAO C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021, C.C.No.428 of 2022, C.C (SR).No.32557 of 2021 and\r\n\r\n# Cross Objection No.3 of 2022 in C.M.A.No.215 of 2021 and Cross Objection No. 14 of 2021 in C.M.A.No. 172 of 2021\r\n\r\n#### COMMON JUDGMENT:\r\n\r\nThe C.M.A.No.214 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.6 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by setting aside the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.172 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.17 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by reversing the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.173 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.5 of 2020 on the file of Court of the V Additional District Judge, Tirupati, by reversing the Judgment and\r\n\r\ndecree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.174 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.6 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by reversing the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.215 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.17 of 2021 on the file of Court of the V Additional District Judge, Tirupati, by setting aside the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe C.M.A.No.216 of 2021 is filed aggrieved by the order dated 10.06.2021 in A.S.No.5 of 2018 on the file of Court of the V Additional District Judge, Tirupati, by setting aside the Judgment and decree dated 12.10.2017 passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of the Court of the Additional Senior Civil Judge, Tirupati.\r\n\r\nThe Contempt Case in C.C.No.428 of 2022 is filed under Section 10 to 12 of Contempt of Courts Act, 1971 to punish the respondents/ contemnors for Contempt of Court for willful and deliberate disobedience in not comply the orders passed by this Court dated 26.07.2021 in I.A.No.1 of 2021 in C.M.A.No. 173 of 2021.\r\n\r\nThe Contempt Case in C.C.(SR).No.32557 of 2021 is filed under Section 10 to 12 of Contempt of Courts Act, 1971 to punish the respondents/ contemnors for Contempt of Court for willful and deliberate disobedience in not comply the orders passed by this Court dated 26.07.2021 in I.A.No.1 of 2021 in C.M.A.No. 173 of 2021.\r\n\r\n 2. Since the facts and issue involved in all the Civil Miscellaneous Appeals and also Contempt Cases are one and the same, I find it expedient to decide these matters by a Common Judgment.\r\n\r\n 3. The parties will herein after be referred to as they are arrayed in the Original Suit for the sake of convenience.\r\n\r\n 4. For the sake of convenience, C.M.A.No. 214 of 2021 is taken as leading case.\r\n\r\n3\r\n\r\n5. Initially the petitioners in I.A.No.359 of 2012 in O.S.No. 2 of 1975 on the file of on the file of the Court of Additional Senior Civil Judge, Tirupati (in short \"the trial court\") is filed under Order 26, Rule 13 and Section 151 of CPC, seeking to pass a final decree in pursuance of the preliminary decree dated 24.04.1982 and also appoint a Commissioner to divide the plaint 'B' 'C' and 'D' schedule properties into two equal shares. The learned trial court allowed the application and final decree is passed in terms of preliminary decree. Assailing the same, the respective respondents therein have preferred an separate Appeals namely A.S.No. 5 of 2020, A.S.No.6 of 2021 and A.S.No.17 of 2021 on the file of the V Additional District Judge, Tirupati (in short \"the first appellate court\"). The appellant in A.S.No.17 of 2021 is not a party to the trial court in preliminary decree or final decree proceedings.\r\n\r\n6. The respondents 13 and 14 before the trial court filed counter, inter alia contended that Mr. Subba Naidu purchased 'B' schedule property and other properties from E. Rangaiah Naidu under two registered Sale Deeds dated 19.08.1968 and 04.12.1972 for valid consideration. There were several transactions took place and the respondents 13 and 14 purchased the said property from one Smt. Parvathamma under two registered Sale Deeds vide document Nos. 740 of 1999 and 741 of 1999. Since then they have\r\n\r\n4\r\n\r\nbeen in possession and enjoyment of the same. The property purchased by the respondents 13 and 14 have to be allotted to E. Rangaiah Naidu i.e 1st defendant, who is vendor of Subba Naidu and subsequently to them. The respondents 13 and 14 prayed to allot the said land which is shown in 'B' schedule in the final decree petition to the 1st defendant's and in turn to the respondents 13 and 14.\r\n\r\n7. Based on the above pleadings, the learned First Appellate eventually framed the following issue for consideration:\r\n\r\n1. Whether the petitioner/ plaintiff in I.A.No. 359 of 2012 in O.S.No.2 of 1975 on the file of Additional Senior Civil Judge, Tirupati is entitled for the relief as prayed for?\r\n\r\n2. Whether the trial court has committed any error in allowing the petition in I.A.No.359 of 2012 in O.S.No.2 of 1975 on the file of Additional Senior Civil Judge, Tirupati on 12.10.2017 and whether the said findings needs any interference of this appellate court in such finding?\r\n\r\n3. To What relief?\r\n\r\n8. After hearing on both the sides, the first appellate court allowed the appeals referred supra by setting aside the final decree and order dated 12.10.2017 passed by the learned trial court in I.A.No.359 of 2012 in O.S.No.2 of 1975 and remanded the suit to the trial court with a direction to re-entrust the warrant to the Advocate-Commissioner along with copy of preliminary decree and copy of the order of the Hon'ble Supreme Court in C.A.No.8416 of 1995, dated 11.09.1995 and give specific directions to the\r\n\r\nAdvocate-Commissioner to work out the equities and to divide the suit schedule property as per the terms of preliminary by strictly following the observations given by the Hon'ble Supreme Court in C.A.No.8416 of 1995, dated 11.09.1995. Further the trial court is directed to dispose of the matter within three months. Assailing the said order, the present C.M.As came to be filed.\r\n\r\n 9. The appellants herein, who are respondents 12 and 13 in first appellate court set out the grounds in the appeal viz.,\r\n\r\n> a) that the first appellate court ought to have seen that both the parties have filed their brief notes, which was referred referred to at Para 9 of the order of the trial court, which was considered by the trial court and passed the order under Appeal, and also the Memo filed by the plaintiff/ D.Hr accepting to take the items shown in Blue Colour as per the Advocate Commissioner's Plan together with the boundaries. Having accepted to take the same, which amounts to admission under Section 17 of Evidence Act, 1872 cannot turn around and dispute the same. Even the parties to the final decree and the persons claiming through the plaintiff/ D.Hr did not file their objections to the Memo dated 04.03.2016 filed by the plaintiff/ D.Hr as such it amounts to a consent to pass the final decree, hence, no appeal is maintainable against the consent decree under Section 96(3) of CPC.\r\n\r\n> b) The first appellate court ought to have seen that the counsel for the respondents 5 and 8 to 1 filed a brief note agreeing to take part of 'A' of the schedule property which is marked in Yellow Colour in the sketch filed by the Advocate-Commissioner along with report dated 07.01.2009, wherein the learned counsel for the plaintiff/ D.Hr endorsed No Objection to\r\n\r\npass final decree and the Advocate has an authority and permission from a party to enter into a compromise. So also, the Hon'ble Apex Court neither disturbed nor directed to divide the property contrary to the preliminary decree. As such the appeal against the consent final decree without challenging the preliminary decree is not maintainable.\r\n\r\n c. The report of the Advocate Commissioner dated 07.01.2009 is in accordance with the preliminary decree, the common order dated 04.01.2003 in C.R.P.Nos. 5710, 5772 and 5801 of 2012 and the law laid down by the Hon'ble Apex Court order dated 11.05.1995 in C.A.No.8416 of 1995. The first appellate court ought to have seen that there were series of transactions took place, which clearly shows that the property were sold by the defendants 4, 5 and 8 to 11 during pendency of the suit and the final decree proceedings.\r\n\r\n d. The Court below ought to have seen that the Appellants in A.S.No.17 of 2021 have filed I.A.No.178 of 2008 in I.A.No.626 of 1983 in O.S.No.2 of 1975 to implead themselves by claiming to have purchased the property from Sri A. Jayaramaiah and Smt. K. Munemma, for a valid consideration on 20.04.1992 and the same was dismissed on 30.06.2008 and thereafter the society filed A.S.No.379 of 2018 before this Court, which was renumbered as A.S.No.17 of 2021 before the learned first appellate court, in addition thereto, the society has also filed O.S.No.169 of 2018 on the file of the first appellate court for the same relief. They have not questioned the dismissal of the I.A.No.178 of 2008, as such, they are prohibited from questioning the same under Section 105(2) of CPC and the Doctrine of Election to pursue two remedies for the same relief.\r\n\r\n e. The Court below ought to have seen that Sri Sivakesavulu, Advocate filed I.A.No. 5 of 2018 claiming 'C' schedule properties in his individual capacity, while the A.S.No.1361 of 2017 is filed against the Item No.1 of 'B' schedule properties, it is also alleged that Mr. Sivakesavulu has\r\n\r\ngiven authorization on his behalf and also on behalf of Commercial Tax Employees Cooperative House Building Society, Tirupati, Appellant in A.S.No.17 of 2001 to Mr. Rajender, President, to prosecute the matter on his behalf, however, he has been appearing as a counsel for the President of the society in O.S.No.169 of 2018 and A.S.No.17 of 2021, which is illegal and impermissible.\r\n\r\n f. The Lower Appellate Court ought to have seen that the memo dated 09.03.2021 filed by the counsel for the Appellants in A.S.No.17 of 2021 clearly indicates that the Respodnents 3 to 15 are not necessary parties and the same is also on record, however, the Lower Appellate Court did not make endorsement in the Judgment and Decree.\r\n\r\n g. The Lower Appellate court ought to have seen that the absence of the specific direction to the Advocate Commissioner to divide the suit schedule property as per the Preliminary Decree would not make any difference, as it was specifically mentioned in the warrant given to the Advocate Commissioner to divide the Item No.1 of the 'B', 'C' and 'D' schedule properties as per the preliminary decree, and the Commissioner's Report dated 07.01.2009 is in continuation of the report submitted on 28.04.2008, which clearly indicates that the absence of the copy of the Hon'ble Supreme Court order or the Preliminary Decrees does not make any difference and the omission to mention the Hon'ble Supreme Court order dated 11.09.1995 in C.A.No.8416 of 1995 does not make in difference as the said division is in accordance with the said judgment.\r\n\r\n 10. Heard Mr. K.G.Krishna Moorthy, learned Senior Counsel, representing Mr. K. Ramamohan, learned counsel, Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar, Mr. M.R.S.Srinivas appeared for the appellants and\r\n\r\nMr. P. Veerraju, Mr. Dasari S.V.V.S.V.Prasad, Mr.Narasimha Rao Gudiseva and Mr.Ch.Venkat Raman, Mr.S.Srinivas Reddy, learned counsel appeared for the respondents.\r\n\r\n11. During hearing Mr. K.G.Krishna Moorthy, learned Senior Counsel, representing Mr. K. Ramamohan, learned counsel, Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar, Mr. M.R.S.Srinivas, learned counsel for the appellants reiterated the contents urged in the grounds of appeal and placed on record the decision of composite High Court at Hyderabad in \"G. Subramanyam (died) by L.Rs vs. $\\boldsymbol{B}.$ **Raghunath (died) by L.Rs^\"1** wherein learned Single Judge held as follows:-\r\n\r\n> *\"11.....To substantiate the argument, learned Counsel for the petitioners-judgment debtors has drawn the attention of this Court to the decision in Dr. Chiranji Lal (D) by LRs v. Hari Das* (*D*) by LRs, (2005) 10 SCC 746; wherein the Hon'ble apex Court held at Para Nos. 2, 25 and 26 as follows:\r\n\r\n> *2. The question that arises for determination in this matter* is when would the period of limitation for execution of a decree passed in a suit for partition commence. In other words, question is when such a decree becomes enforceable, from the date when the decree is made or when the decree is engrossed on the stamp paper, which, out of these two, would be the starting *point of limitation?*\r\n\r\n $12017(4)$ ALD 638\r\n\r\n 25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domine, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the Court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeswant Deorao Deshmukh v. Watchand Ramchand Kothari, AIR 1951 SC 16, it was said that the payment of Court fee on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.\r\n\r\n 26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As above noted, there is no statutory provision prescribing a timelimit for furnishing of the stamp paper for engrossing the decree or time-limit for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for engrossing of the decree or there is no time-limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. .......\r\n\r\nLearned counsel for the appellants would contend that the engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domine, purview and control of a party, which rightly held by the composite High Court in the decision cited supra.\r\n\r\n12. Further, he relied on a decision of the Hon'ble Supreme \"Katikara Chintamani Dora and Others vs. Court in **Guatreddi Annamanaidu and Others**² wherein it was held as follows:\r\n\r\n> \"56. Order 23, Rule 3, Code of Civil Procedure, not only permits a partial compromise and adjustment of a suit by $a$ lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise of adjustment in so far as it relates to the suit. If the compromise *agreement was lawful- and as we shall presently discuss it was* to – the decree to the extent it was a consent decree, was not appealable because of the express bar in Section 96(3) of the Code.\r\n\r\nTherefore, learned counsel for the appellants herein would contend that as per order 23, rule 3 of C.P.C speaks if the compromise agreement was lawful, the decree to the extent it was\r\n\r\n $^{2}$ AIR 1974 SC 1069\r\n\r\na consent decree, was not appealable because of express bar in Section 96(3) of the C.P.C. $\\Box$ \r\n\r\n13. learned counsel for the appellants drawn the attention of this Court with regard to Section 96(3) of CPC and Order 23, rule 3 of CPC and contended that a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made and the same has been discussed by the Hon'ble Apex Court in \"Pushpa Devi Bhyagat vs. Rajinder Singh and Others\"³ wherein it was held as follows:\r\n\r\n> \"17. *The position that emerges from the amended provisions of Order 23 can be summed up thus:*\r\n\r\n> (i) No appeal is maintainable against a consent decree *having regard to the specific bar contained in Section 96(3) CPC.*\r\n\r\n> (ii) No appeal is maintainable against the order of the court *recording the compromise (or refusing to record a compromise) in view of the deletion of clause(m) of Rule 1 Order 43.*\r\n\r\n> (iii) No independent suit can be filed for setting aisde a compromise decree on the ground that the compromise was not *lawful in view of the bar contained in Rule 3-A.*\r\n\r\n> *(iv) A consent decree operates as an estoppels and is valid* and binding unless it is set aside by the court which passed the\r\n\r\nconsent decree, by an order on an application under the proviso to Rule 3 Order 23.\r\n\r\n*Therefore, the only remedy available to a party to a* consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made......\"\r\n\r\nAnd also relied on a decision of the High Court of Madras in \"Gemini Pictures Circuit P. Ltd., rep., by its Chief Manager vs. **M. Ramaswamy and Another²⁴** wherein it was held as follows:\r\n\r\n> 8. Order XXIII, Rule 3 of the Code of Civil Procedure provides for passing of a decree on a memo of compromise entered into between the parties during the pendency of a suit by which the claim is satisfied or adjusted. Before amendment made in 1976 oral settlement was also permissible and in the amendment, the same is excluded. The compromise should not *be recorded in a casual manner, but the Court has to first satisfy* with the memo of compromise which has been entered into between the parties is lawful, before accepting the same and must apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement. Once such a proof of compromise is accepted by the Court, it becomes the order of the Court and acquires the sanctity of a judicial order. Such an adjustment and compromise\r\n\r\n^<sup>4 2002 SCC OnLine Mad 807\r\n\r\nare necessary to have a speedy disposal of cases with a view to relieving the litigants and the Courts from the burden of mounting arrears. It is well settled that the counsel can also enter into compromise on behalf of the parties.\r\n\r\n 9. In the decision reported in Byram Pestonji Gariwala v. Union of India, 1992 (1) SCC 31, the Apex Court has taken the said view and held as follows:\r\n\r\n \"37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority not integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.\r\n\r\n38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative\r\n\r\nobject of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.\"\r\n\r\n 10. The scope of appreciation of the memo of compromise by Courts has been dealt with by the Apex Court in the decision in Banwarilal v. Chando Devi, 1993 (1) SCC 581, holding as follows:\r\n\r\n> \"13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, \"the Court shall decide the question\", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise \"which is void or voidable under the India Contract Act...\" shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.\"\r\n\r\n14. Order XXIII, Rule 3 of the Code of Civil Procedure provides for passing of a decree on a memo of compromise entered into between the parties during the pendency of a suit by which\r\n\r\nthe claim is satisfied or adjusted. Before amendment made in 1976 oral settlement was also permissible and in the amendment, the same is excluded. The compromise should not be recorded in a casual manner, but the Court has to first satisfy with the memo of compromise which has been entered into between the parties is lawful, before accepting the same and must apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement. Once such a proof of compromise is accepted by the Court, it becomes the order of the Court and acquires the sanctity of a judicial order.\r\n\r\n 15. Further it is further contended that the Apex Court in the decision in \"Banwarilal v. Chando Devi\",5 clearly held that in view of the proviso Rule 3 of Order 23 read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code.\r\n\r\n 16. Mr.Ch.Venkat Raman, learned counsel appearing for the respondents in C.M.A.No.172 of 2021 placed on record the \r\n\r\n⁵ 1993 (1) SCC 581\r\n\r\nchronological events in the batch C.M.As and also copy of the Judgment of the Hon'ble Supreme Court dated 11.09.1995 in Civil Appeal No. 8416 of 1995, which was filed by Mr. K. Adivi Naidu and others against Mr. E. Durvasulu Naidu and others, wherein it was held as follows:\r\n\r\n> \"Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final the trial court need to give effect to it. It is settled law that alienees of the alienees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other co-parceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to with their principal alienor was entitled would be allotable to them as a special case. However, since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition. It should, in letter and spirit, be given effect to while passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well. Considered from this perspective, the direction issued by the Division Bench would be modified above, and the trial court would pass the final decree accordingly.\r\n\r\n And also placed on record the interim order dated 05.01.2018 in I.A.No.2 of 2018 in A.S.No.1361 of 2017, wherein the Hon'ble Division Bench of the composite High Court at Hyderabad held as follows:\r\n\r\n> \"Perusal of the judgment under appeal reflects that it is not in keeping with the order of the Supreme Court in as much as there is not even a reference to the valuation of the properties in question. That apart, the land allegedly purchased by the appellants, which ought to have been allotted to the share of the vendors, seems to have been equally divided\".\r\n\r\n 17. Mr.Ch.Venkat Raman, learned counsel appearing for the respondents placed on record the common Judgment dated 05.01.2021 of the Hon'ble Division Bench of this Court, wherein it was holding that the appeals in A.S.No.1361 of 2017 and A.S.No.302 and 379 of 2018 were returned to the appellants to present the same before the appropriate District Judge, who would have jurisdiction, to decide the batch appeals in accordance with law. Further this Court directed the parties to maintain status quo for a period of four weeks. Assailing the same Mr. E. Durvasulu Naidu filed petition for Special Leave to Appeal (C) Nos. 3388-3390 of 2021 and the Hon'ble Apex Court dismissed the same on 02.03.2021, while directing the District Court to expedite the hearing of the appeals and dispose them of within a period of six months.\r\n\r\n 18. Mr.Ch.Venkat Raman, learned counsel appearing for the respondents would contend that it is settled law that alienees of the alienees have no right to equities. So also it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other co-parceners. Since the properties were purchased prior to the institution of the suit for partition, though the appellants in C.A.No.8416 of 1995 have no right to equities, it could be said that the respective share to with their principal alienor was entitled would be allotable to them as a special case. Further, the preliminary decree passed directed to divide the suit schedule properties by mates and bounds with reference to the good and bad qualities as held by the Hon'ble Apex Court and given finding that if the lands purchased by the appellants therein are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value and modified the order of the learned Division Bench and directed to pass final decree. Therefore it is contended that there is no need or necessity to restart the issues further and no clarification is required in any aspects. Therefore the C.M.As are liable to be dismissed.\r\n\r\n 19. Mr. P.Veerraju, Mr. Dasari S.V.V.S.V.Prasad, Mr. Narasimha Rao Gudiseva and Mr.Ch.Venkat Raman, Mr.S.Srinivas Reddy, learned counsel appearing for the respondents vehemently opposed to allow the C.M.As, as it is a speculative litigation and strongly argued at length by explaining the legal aspects.\r\n\r\n 20. The appellant/ third party in A.S.No.17 of 2021, who is 1st respondent in C.M.A.No.215 of 2021 has filed Cross Objections No.3 of 2022 in C.M.A.No.215 of 2021, wherein he raised the following grounds viz.,\r\n\r\n> a) the court below ought to have seen that the Cross Objector herein raised the ground that both the Preliminary Decree and Final Decree are vitiated by fraud and that both the Preliminary Decree and the Final Decree are collusive proceedings between the plaintiff, defendant No.1, defendant No.2, respondents 1 and 2 herein i.e the appellants in C.M.A.No.215 of 2021. The court below failed to take note of the same.\r\n\r\n> b) The Court below ought to have seen that defendant No.1 and 2 (father and mother of the plaintiff) who have specifically pleaded in their respective written statements that C-Schedule properties are self acquired properties of plaintiff and his mother- defendant No.2, and that it is not amenable for partition, remained exparte in the suit to facilitate the fraud that was being committed by the plaintiff. Hence, the entire suit is a collusive proceedings vitiated by fraud.\r\n\r\n> c) The Court below ought to have seen that the alleged will which is unmarked and not established, is also suspicious as\r\n\r\nthe defendant No.1, who had categorically pleaded in his Written Statement that the suit schedule properties are not joint family properties and are not amenable for partition, could not have acted to the contrary, and execute a will bequeathing his share in the alleged joint family property to the so called legatees who are complete strangers and unconnected to the plaintiff's family, unless the defendant No.1 was also party to the fraud and he also colluded with the plaintiff.\r\n\r\n d) The court below ought to have seen that the Hon'ble Supreme Court of India in S.P.Chengalvarayudu vs. K. Jagannathan 1994(1) SCC 1 further held that when the plea of fraud is raised, the stage and that the finality of litigation becomes immaterial in the following words:\r\n\r\n\"The principle of \"finality of litigation\" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often that not, process of the court is being abused. Property-grabbers, tax-evaders, bankloan dodgers and other unscrupulous persons from all walks of life find that court-process a convenient level to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation\".\r\n\r\nHence, the plea of finality of preliminary decree and other considerations are also of no avail and the lower appellate court ought to have considered the same.\r\n\r\n e) The court below failed to consider that the vendors of the Cross objectors, who were respondents 6 and 7 in I.A.No.359 of 2012 in O.S.No.2 of 1975 died pending the Final Decree Proceedings, and the plaintiff ought to have brought on\r\n\r\nrecord, the Legal Heirs of the Cross Objector's vendors or at least the Cross Objector herein who is the Successor-in-Interest. The plaintiff resided in the same small village in which the vendors of the Cross objectors resided and hence he was very well aware of the fact that the vendors of the cross objectors died. Hence, the lower appellate court ought to have seen that the *final decree was passed against dead respondents\".* \r\n\r\n21. So also filed cross objection No.14 of 2021 in C.M.A.No.\r\n\r\n172 of 2021, who is $17^th$ respondent in A.S.No. 17 of 2021.\r\n\r\n22. Mr. Ashok Anand Kumar, learned Senior Counsel for the appellants placed on record the catena of decisions of Hon'ble Apex Court with regard to maintainability of Appeal under Order 43, rule $1(u)$ of C.P.C and the dealt with in \"Narayanan vs. **Kumaran and Others⁷⁶** wherein it was held as follows:\r\n\r\n> \"17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43, Rule 1, clause (u) should be *heard only on the ground enumerated in Section 100......\"*\r\n\r\n $6$ (2004) 4 SCC 26\r\n\r\nAnd also placed on record the decision of the Hon'ble Apex Court in \"J. Balaji Singh vs. Diwakar Cole and Others\"⁷ wherein it was held that order 41, rule 23 enables the appellate court to remand the case to the trial court when it finds that the trial court has dispose of the suit upon a preliminary point. The appellate court in such cases is empowered to direct the trial court to decide all the issues on evidence on record. Further Rule 23-A is concerned, the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all issues, but on reversal of the decree in appeal, a retrial is considered necessary by the appellate court. Further the appellate court in such case may frame the issues and refer the same to the trial court to take the evidence and record the findings on such issues and return to the appellate court for deciding the appeal. In such cases, the appellate court retains the appeal to itself.\r\n\r\n23. Mr. M.R.S.Srinivas, learned counsel for the appellants placed on record the decision of the Hon'ble Apex Court in \"Kaushlya Devi and Others vs. Baijnath Sayal (deceased) and **Others^\"8** wherein it was held as follows:\r\n\r\n $7(2017)$ 14 SCC 207\r\n\r\n $\\overline{8}$ (1961) 3 SCR 769: AIR 1961 SC 790\r\n\r\n\"11. If the preliminary decree passed in the present proceedings without complying with the provisions of Order 32, Rule $7(1)$ is not a nullity but is only voidable at the instance of the appellants, the question is: can they seek to avoid it by preferring an appeal against the final decree? It is in dealing with this point that the bar of section 97 of the Code is urged against the appellants. Section 97, which has been added in othe Code of Civil Procedure, 1908, for the first time provides that where any party aggrieved by a preliminary decree passed *after the commencement of the Code does not appeal from such* decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree\".\r\n\r\nHe relied on a decision in **\"Venkata Reddy and Others vs.** \r\n\r\n**Pethi Reddy**^\"9 wherein it was held as follows:\r\n\r\n5. The new provision makes it clear that the law is and has always been that upon the father's insolvency his disposing power over the interest of his undivided sons in the joint family *property vests in the Official Receiver and that consequently the* latter has a right to sell that interest. The provision is thus *declaratory of the law and was intended to apply to all cases except those covered by the two provisos. We are concerned here* only with the first proviso. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent court. The short question, therefore, Is whether the preliminary decree for partition passed in this case which was affirmed finally in second appeal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since *final decree proceedings were still going on when the Amending* \r\n\r\n^<sup>9 1963 Supp (2) SCR 616: AIR 1963 SC 992\r\n\r\nAct came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, insofar as rights adjudicated upon are concerned, be deemed to be a final decision. The word decision even in its popular sense means a concluded opinion (see Stroud's judicial Dictionary 3rd Edn.Vol.I, p. 743) Where, therefore, the decision is embodied in the judgment which is is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal review or revision petition as provided for by law. The High Court has, however, observed:\r\n\r\n \"The, mere declaration of the rights as the plaintiff by the preliminary decree, would, in our opinion not amount her final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, There are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final.\"\r\n\r\nIt is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned Judges meant was modified or amended in appeal or in review or in revision or in exceptional circumstances by resorting to the powers conferred by Sections 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be \"modified and amended\". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to decree at all. That is not the law. A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment.Similarly, a final decision would mean a decision\r\n\r\nwhich would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.\r\n\r\n#### 24. In \"Banwari Lal vs. Chando Devi (smt) (through L.Rs)\r\n\r\nand Another\"¹⁰ wherein it was held as follows:-\r\n\r\n\"8. Earlier under Order 43, Rule 1(m) an appeal was maintainable against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act aforesaid that clause has been deleted, the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order 23. Being\r\n\r\n¹⁰ (1993) 1 SCC 581\r\n\r\nconscious that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1-A has been added to Order 43, which is as follows:\r\n\r\n \"1-A. Right to challenge non-appelable orders in appeal against decree –(1) where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.\r\n\r\n (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded\".\r\n\r\n 25. Upon perusal of the entire material on record, the following substantial issues have been involved to decide the batch C.M.As, which are as under:\r\n\r\n## a) Whether the order passed under Section 23, rule 3 of CPC is appealable or not?\r\n\r\n b) Whether the appeal is maintainable, though it is a compromise decree as contended by the appellants?\r\n\r\n c) Whether the impleaded respondents in the matter are having right over the property in pursuant to the orders in S.L.P(C) No. 8416 of 1995?\r\n\r\n 26. As could be seen from the Report of the Advocate Commissioner in I.A.No.626 of 1983 in O.S.No.2 of 1975 the division of each survey number in to two shares i.e half and half; as it is not easy and convenient to enjoy them since the nature of the above said survey numbers do not connect with the areas of another divided survey number to have ingress and egress to the main road for the entrance and also do not have access to one area to another in divided survey numbers without causing interference to the divided share of other sharer. The division of all the lands in block 'I' of Ac. 10.65 cents and block 'II' of Ac. 14.72 acres do have equal values and do have access to the main road and also access to the areas of other survey numbers in the divided shares without causing any sort of interference to the areas of the other divided share. Thus, the Advocate-Commissioner have divided Ac. 25.37 cents in Item No.1 of 'B' schedule property into two equal shares as per the values and also as per extent wise as detailed above by taking into consideration in good and bad qualities; and the values; and conveniences; for both sharers to enjoy their respective shares without entering in the other share of lands.\r\n\r\n 27. Objections were filed by the respondents 6 and 7 before the trial court against the Commissioner Report and contended that the commissioner has not mentioned in his report the wide\r\n\r\ncontrast between Item No.1 of 'B' schedule and 'C' schedule properties pertaining to values, since Item No.1 of 'B' schedule is situated besides 100 feet road and quite opposite to a three star hotel, which is having commercial value; whereas 'C' schedule property is situated far away from 100 ft., road situated besides a Dhalithwada in the interior area near the forest without permanent and proper approach road.\r\n\r\n 28. Since objections were raised by the respondents 6 and 7 before the trial court re-entrusted the warrant to the Advocate Commissioner, who executed the warrant again and filed all sketches relating to all the survey numbers in Item 1 and 2 and extents therein have been divided into two equal parts and the same have been demarcated and delineated in the sketches. Later a Memo has been filed by the plaintiff/ D.Hr in I.A.No.359 of 2012 in O.S.No.2 of 1975, wherein it was stated that he is also willing to take part 'B' lands in each survey number. Since the respondents therein filed Memo to that effect that A part may be allotted to them and to their principal alienor, the remaining part 'B' lands may be allotted to the share of the plaintiff/ D.Hr.\r\n\r\n 29. Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar would contend that the learned\r\n\r\ncounsel for the petitioner before the trial court has given written consent and reported no objection for partition to take part 'B' portion each survey number shown in blue wash by the advocate commissioner's combined sketch filed along with his report dated 07.01.2009, which endorsement is made on 20.04.2012. Therefore there is nothing else to be decided and it vitiated clear consent for passing final decree.\r\n\r\n 30. The trial court appointed an Advocate Commissioner to divide the of 'B', 'C; and 'D' schedule properties in terms of preliminary decree and the Advocate Commissioner duly executed the warrant and filed report. Basing on report of the Advocate Commissioner final decree was passed in I.A.No.626 of 1990, dated 04.06.1990, which was questioned by the plaintiff and the 1st defendant in A.S.No.2391 of 1990 and A.S.No.1183 of 1991 respectively, which was dismissed on 06.08.1991. Later L.P.A.No.261 of 1991 was filed by the plaintiff questioning the same was allowed and the matter was remanded on 24.08.1994, assailing the same, Mr. K. Adivi Naidu and others filed SLP(C) No. 8416 of 1995, which was allowed as per the orders dated 11.05.1995 in Civil Appeal No.8416 of 1995. Upon remand I.A.No.359 of 2012 was taken up by the trial court for passing a final decree. During the pendency of the said application,\r\n\r\n30\r\n\r\nrespondents 6 to 12, 15 and 16 were added, by the orders of the trial court. The implead applications of respondents No.13 and 14 were rejected by the trial court. In C.R.P.No.5710, 5772 and 5801 of 2012 filed against the said order of rejection, the erstwhile High Court of Andhra Pradesh set aside the said order of rejection. Consequently the trial court added respondents 13 and 14.\r\n\r\n 31. The trial court appointed an Advocate- Commissioner, who filed report dated 07.01.2009, basing on his report, final decree was passed on 12.10.2017. Aggrieved by the same, three appears in A.S.No.1361 of 2017, A.S.No.302 of 2018 and A.S.No.379 of 2018 have been filed before this Court and the Hon'ble Division bench of this Court returned the appeals to the appellants to present the same before the appropriate District Judge having jurisdiction to decide the same in accordance with law as the appeals are not maintainable before this Court and granted protection of status quo for a period of four weeks on 05.01.2021.\r\n\r\n# a) Whether the order passed under Section 23, rule 3 of CPC is appealable or not?\r\n\r\n 32. Mr. K. Adivi Naidu and Others filed Civil Appeal No.8416 of 1995, wherein the Hon'ble Apex Court passed the detailed order\r\n\r\n31\r\n\r\ntherein very specifically, which already extracted supra. Whereas, in A.S.No.17 of 2021, the first appellate court, which arising out of the order passed in I.A.No.359 of 2012 in O.S.No.2 of 1975 holding that the matter is remanded to the trial court with a direction to re-entrust the warrant to the Advocate Commissioner along with relevant copies of documents to divide the suit schedule property as per the terms of preliminary decree by strictly following the observations given by the Hon'ble Apex Court in C.A.No.8416 of 1995, dated 11.09.1995, which is unwarranted in the light of the findings given by the Hon'ble Apex Court as cited supra.\r\n\r\n 33. The Hon'ble Apex Court made specific observation in its order dated 11.09.1995, since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to with their principal alienor was entitled would be allotable to them as a special case. It is further observed that since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition. It should, in letter and spirit, be given effect to while passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be\r\n\r\nascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well and directed the trial court would pass the final decree accordingly. Therefore there is no need or necessity to look beyond the findings given by the Hon'ble Court.\r\n\r\n 34. In view of the said scenario, this Court finds that the appellants before the first appellate court has no locus standi to file appeals, challenging the I.A.No.359 of 2012 in O.S.No.2 of 1975 by way of Appeal, as it comes under proviso in C.M.A. Further, the first appellate court has travelled beyond the scope of the findings given by the Hon'ble Apex Court. When there are clear findings apparent on the face of record in its order, which passed in the year 1995, the first appellate court erred in remand the matter back to the trial court is not justifiable. The Advocate-Commissioner Report holds good and no need to get further clarification with regard to value and other aspects.\r\n\r\n 35. By taking into consideration of the true letter and spirit of the order of the Hon'ble Apex Court, this Court finds that it is unnecessary to touch the preliminary decree passed by the learned trial court. Further it is observed that the Civil Appeal No. 8416 of 1995 was filed in the year 1995, whereas final decree application\r\n\r\nwas filed in the year 2012 i.e after long elapse of 17 years and that juncture, so many transactions took place, while the matters are being pending before the court of law and created third party interest, who are added as parties subsequently. These issues cannot be looked into at this stage as per decision of the Hon'ble Apex Court in C.A.No.8416 of 1995. Therefore in these matters, third party purchasers' rights cannot be decided. If the same is taken into consideration, it is nothing but restarts the trial and cause great injustice to the parties and very purposing of passing final decree will be defeated.\r\n\r\n 36. In view of the same, as per Section 23, rule 3 of C.P.C is not applicable to file appeal before the first appellate court in the light of the decision in \"Katikara Chintamani Dora's Case (cited 2nd supra) and \"Pushpa Devi Bhyagat's case (cited 3rd supra) Accordingly answered in favour of the appellants herein.\r\n\r\n## b) Whether the appeal is maintainable, though it is a compromise decree as contended by the appellants?\r\n\r\n 37. A Memo has been filed by the plaintiff i.e E. Durvasulu Naidu in O.S.No.2 of 1975 stating that the plaintiff is not claiming his share in 'B' schedule property item as a settled the dispute is settled with the heirs of P. Rajamma and sold the same to G. Ganapati and another under Registered Sale Deeds dated\r\n\r\n06.02.1995. Hence requested to delete the said property i.e S.No.220 an extent of Ac. 1.50 cents from the plaint schedule.\r\n\r\n 38. It is contended by the learned counsel for the appellants that when there was compromise decree passed, question of filing the appeal against the decree does not arise?. It is apparent on the face of the record to effect no objection to pass final decree as per endorsements. As per decision in \"Narayanan's case (cited 6th supra) as per Order 43, rule 1(u) of C.P.C an appeal should be heard only on the ground enumerated in Section 100 of C.P.C. Therefore no doubt it is a consent and compromise decree, which cannot be appealable. On that score also, the Appeal is not maintainable before the first appellate court.\r\n\r\nc) Whether the impleaded respondents in the matters are having right over the property in pursuant to the orders in S.L.P(C) No. 8416 of 1995?\r\n\r\n 39. Since there is no legal infirmity or latches, but there is subsequent alienations and created charge to third parties, who are also added as parties to the proceedings in the midst, though the matter is subjudice between the parties in the court of law. Therefore, it is highly difficult to take into consideration of all subsequent transactions that too after passing preliminary decree\r\n\r\nis meaningless, which are unconnected to the suit. Therefore, it is needless to take into consideration of those aspects. Therefore the point is answered accordingly.\r\n\r\n 40. In view of the facts and circumstances stated above, this Court came to a conclusion that the decisions cited by the respondents are not applicable within the parameters of the Judgment of the Hon'ble Apex Court in Civil Appeal No. 8416 of 1995, so also cross objections filed by the respondents.\r\n\r\n 41. Viewing from in any angle, it is made clear that the first appellate court created a new litigation between the parties, which is highly untenable. Under these circumstances, I have no hesitation to say that the batch C.M.As has to be allowed in to-to.\r\n\r\n 42. Since this Court is inclined to allow the batch C.M.As the Contempt Cases closed, as the issues considered on merits and Common Judgment is passed in main C.M.As.\r\n\r\n 43. In the result, the batches C.M.As are allowed and both Contempt Cases are closed by a Common Judgment. There shall be no order as to costs.\r\n\r\n As a sequel, miscellaneous applications pending, if any, shall also stand closed.\r\n\r\n#### \\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_ DR.K. MANMADHA RAO, J\r\n\r\nDate: 28.08.2023\r\n\r\nNote: L.R copy marked B/o KK\r\n\r\nTHE HON'BLE DR. JUSTICE K. MANMADHA RAO\r\n\r\n# C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021, C.C.No.428 of 2022, C.C (SR).No.32557 of 2021 and\r\n\r\n# Cross Objection No.3 of 2022 in C.M.A.No.215 of 2021 and Cross Objection No. 14 of 2021 in C.M.A.No. 172 of 2021\r\n\r\nDate: 28.08.2023\r\n\r\nNote: L.R copy marked B/o KK\r\n\r\n#### IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI\r\n\r\n# + C.M.A.Nos.214, 172, 173, 174, 215, 216 of 2021, C.C.No.428 of 2022, C.C (SR).No.32557 of 2021 and\r\n\r\n## Cross Objection No.3 of 2022 in C.M.A.No.215 of 2021 and Cross Objection No. 14 of 2021 in C.M.A.No. 172 of 2021\r\n\r\n% 28.08.2023\r\n\r\n### C.M.A.No.214 of 2021\r\n\r\n# Smt. Aipala Kasturi and another\r\n\r\nVs.\r\n\r\n\\$ Sri Kilari Rama Naidu and Others\r\n\r\nC.M.A.No.172 of 2021\r\n\r\n# E. Durvasulu Naidu\r\n\r\nVs.\r\n\r\n\\$ E. Rangaiah Naidu (Died) and Others\r\n\r\n### C.M.A.No.173 of 2021\r\n\r\n# E. Durvasulu Naidu\r\n\r\nVs.\r\n\r\n\\$ E. Yengamma and Others\r\n\r\n… Respondents.\r\n\r\n… Appellant.\r\n\r\n… Appellants.\r\n\r\n… Respondents.\r\n\r\n… Appellant.\r\n\r\n… Respondents.\r\n\r\n### C.M.A.No.174 of 2021\r\n\r\n# E. Durvasulu Naidu … Appellant. Vs. \\$ E. Rangaiah Naidu and Others … Respondents.\r\n\r\n| C.M.A.No.215 of 2021 |\r\n|----------------------|\r\n|----------------------|\r\n\r\nVs. \\$ Tirupati Circle Commercial Taxes Employees Co-operative House Building Society, Tirupati Rep., by its President Sri P. Rajendra Babu and Others … Respondents. C.M.A.No.216 of 2021 # Smt. Aipala Kasturi and another … Appellants. Vs. \\$ Smt. Sadu Amruthavalli and Others\r\n\r\n### C.C.No.428 of 2022\r\n\r\n# E. Durvasulu Naidu\r\n\r\nVs.\r\n\r\n\\$ Kilari Ratna Naidu and Others\r\n\r\n# Smt. Aipala Kasturi and another\r\n\r\n### C.C (SR).No.32557 of 2021\r\n\r\n# E. Durvasulu Naidu\r\n\r\nVs.\r\n\r\n\\$ Sri Nitin Prasad and another … Respondents.\r\n\r\n### Cross Objection No.3 of 2022\r\n\r\n# Tirupati Circle Commercial Taxes Employees Cooperative House Building Society, Tirupati rep., by its President P. Rajendra Babu … Cross Objector/ 1st respondent Vs. \\$ Smt. Aipala Kasturi and others … Respondents.\r\n\r\n… Appellants.\r\n\r\n… Respondents.\r\n\r\n… Appellant.\r\n\r\n… Respondents.\r\n\r\n… Appellant.\r\n\r\n### Cross Objection No.14 of 2021\r\n\r\n# Tirupati Circle Commercial Taxes Employees Cooperative House Building Society, Tirupati rep., by its President P. Rajendra Babu … Cross Objector/ 1st respondent Vs. \\$ Durvasulu Naidu and others … Respondents. ! Counsel for the Appellants : Mr.K.G.Krishna Moorthy, learned Senior Counsel, representing Mr. K. Ramamohan, learned counsel, Mr.Ashok Anand Kumar, learned Senior Counsel, representing Mr. N. Gangadhar, Mr. M.R.S.Srinivas ! Counsel for the Respondents: Mr. P. Veerraju, Mr. Dasari S.V.V.S.V.Prasad, Mr.Narasimha Rao Gudiseva and Mr.Ch.Venkat Raman, Mr.S.Srinivas Reddy,\r\n\r\n< Gist:\r\n\r\n> Head Note:\r\n\r\n? Cases referred:\r\n\r\n- 1. 2017(4) ALD 638\r\n- 2. AIR 1974 SC 1069\r\n- 3. (2006) 5 SCC 566\r\n- 4. 2002 SCC OnLine Mad 807\r\n- 5. 1993(1) SCC 581\r\n- 6. (2004) 4 SCC 26\r\n- 7. (2017) 14 SCC 207\r\n- 8. (1961) 3 SCR 769: AIR 1961 SC 790\r\n- 9. 1963 Supp(2) SCR 616 : AIR 1963 SC 992\r\n- 10.(1993) 1 SCC 581\r\n\r\n#### DATE OF ORDER PRONOUNCED: 28.08.2023\r\n\r\n#### \\* THE HON'BLE DR. JUSTICE K. MANMADHA RAO\r\n\r\n| 1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? | Yes/No |\r\n|----------------------------------------------------------------------------------|--------|\r\n| 2. Whether the copies of judgment may be
Marked to Law Reporters/Journals. | Yes/No |\r\n| 3. Whether Their Ladyship/Lordship wish
to see the fair copy of the Judgment? | Yes/No |\r\n\r\n\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_\\_ DR.K. MANMADHA RAO, J",{"_370":437,"_372":438,"_374":439,"_376":-5},"APHC010252132021-order-4.pdf","APHC010252132021-order-4.md","## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATI**\r\n\r\n## **MAIN CASE No: C.M.A.No.174 of 2021**\r\n\r\n## **PROCEEDING SHEET**\r\n\r\n| Sl. | Date | ORDER | OFFICE |\r\n|-----|------------|--------------------------------------------------|--------|\r\n| No. | | JUD,J | NOTE |\r\n| 02. | 06.09.2021 | | |\r\n| | | Learned counsel for the petitioner states | |\r\n| | | that some of the respondents are to be served | |\r\n| | | with notices.
Hence, this matter is posted to | |\r\n| | | 04.10.2021. | |\r\n| | | Meanwhile, petitioner's counsel to serve | |\r\n| | | notices on the respondents who have not been | |\r\n| | | served with notices so far. | |\r\n| | | | |\r\n| | | _______
JUD,J | |\r\n| | | Gk | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":441,"_372":442,"_374":443,"_376":-5},"APHC010252132021-order-5.pdf","APHC010252132021-order-5.md","## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATI**\r\n\r\n## **MAIN CASE No. C.M.A.No.174 of 2021**\r\n\r\n## **PROCEEDING SHEET**\r\n\r\n| Sl.
No. | DATE | ORDER | OFFICE
NOTE |\r\n|------------|------------|---------------------|----------------|\r\n| 03. | 04.10.2021 | MGR, J | |\r\n| | | Post on 25.10.2021. | |\r\n| | | ________ | |\r\n| | | MGR, J
CSR | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":445,"_372":446,"_374":447,"_376":-5},"APHC010252132021-order-6.pdf","APHC010252132021-order-6.md","## **HIGH COURT OF ANDHRA PRADESH – AMARAVATHI**\r\n\r\n## **MAIN CASE No. : C.M.A.No.174 of 2021**\r\n\r\n## PROCEEDING SHEET\r\n\r\n| S1.
$No.$ | DATE | ORDER | OFFICE
NOTE. |\r\n|--------------|------------|--------------------------------------------------------|-----------------|\r\n| 4. | 25.10.2021 | MGR,J | |\r\n| | | Learned counsel for the appellant seeks time to | |\r\n| | | file counter in the implead petition i.e., I.A.No.3 of | |\r\n| | | 2021. | |\r\n| | | Learned counsel for the appellant is permitted | |\r\n| | | to take out personal notices on the correct | |\r\n| | | addresses of the respondents and also serve notices | |\r\n| | | on the learned counsel who appeared for the | |\r\n| | | respondents herein before the trial Court by | |\r\n| | | Registered Post with Acknowledgement Due and file | |\r\n| | | proof of service into the Registry. | |\r\n| | | Post on 29.11.2021. | |\r\n| | | | |\r\n| | | MGR, J
anr | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":449,"_372":450,"_374":451,"_376":-5},"APHC010252132021-order-7.pdf","APHC010252132021-order-7.md","## HIGH COURT OF ANDHRA PRADESH AT AMARAVATI\r\n\r\n## MAIN CASE No: C.M.A.Nos.173 and 174 of 2021\r\n\r\n## PROCEEDING SHEET\r\n\r\n| $S1.$
$\\mathbf{No.}$ | $\\boldsymbol{DATE}$ | ORDER | OFFICE
NOTE. |\r\n|-------------------------|---------------------|--------------------------------------------------------|------------------------|\r\n| | 30.11.2021 | $\\underline{\\text{KVL, J}}$ | |\r\n| | | At request of learned counsel for petitioner | |\r\n| | | to file proof of service, list these matters after six | |\r\n| | | $(6)$ weeks. | |\r\n| | | | |\r\n| | | KVL, J | |\r\n| | | VSL | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":453,"_372":454,"_374":455,"_376":-5},"APHC010252132021-order-8.pdf","APHC010252132021-order-8.md","## **HIGH COURT OF ANDHRA PRADESH AT AMARAVATI**\r\n\r\n## **MAIN CASE No. C.M.A.Nos.172, 173 & 174 of 2021**\r\n\r\n## **PROCEEDING SHEET**\r\n\r\n| Sl. | DATE | ORDER | OFFICE |\r\n|-----|------------|-----------------------------------------------------------------------------------------------------------------------------------------------|--------|\r\n| No. | 17.02.2022 | MGR, J | NOTE |\r\n| | | Both the counsel states that these
matters
may
be
heard
along
with
C.M.A.Nos.214, 215 and 216 of 2021. | |\r\n| | | Parties
served
notice
by
way
of
substituted
service
as
ordered
by
this
Court, the same was complied with. | |\r\n| | | Post
these matters on 10.03.2022
along with C.M.A.Nos.214, 215 and 216 of
2021. | |\r\n| | | ________
MGR, J
CSR | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |\r\n| | | | |",{"_370":457,"_372":458,"_374":380,"_376":-5},"APHC010252132021-order-9.pdf","APHC010252132021-order-9.md","descriptions",{"_461":462,"_465":466},"enumFields",[278,280,273,23,463,464],"caseCategory","benchType","enumLookup",{"_278":467,"_280":469,"_273":471,"_23":473,"_463":475,"_464":476},{"_279":468},"Civil Miscellaneous Appeal",{"_24":470},"Unknown Status",{"_272":472},"High Court of Andhra Pradesh",{"_24":474},"Unknown Section",{},{},"caseAiAnalysis","order","order-5","actionData","errors"]

E Durvasulu Naidu vs. E Rangaiah

AI Summary

Order Issued After Hearing

Original Order Copy

Order Text

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

MAIN CASE No. C.M.A.No.174 of 2021

PROCEEDING SHEET

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