J.Parvathi vs. Bojja Subramanyam
Court:High Court of Andhra Pradesh
Judge:Hon'ble Ravi Nath Tilhari
Case Status:Unknown Status
Order Date:28 Aug 2023
CNR:APHC010381872023
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HIGH COURT OF ANDHRA PRADESH:: AMARAVATI
MAIN CASE No:C.R.P (SR).No.30817 OF 2023
PROCEEDING SHEET
| S1.<br>$N_{\rm O}$ | DATE | ORDER | $\mathbf{O}$<br>$\mathbf{N}$ |
|---|---|---|---|
| $\overline{\text{RNT},\text{J}}$ | |||
| $01.$ | 28.08.2023 | Heard Sri M. Rahul Chowdary, learned | |
| counsel representing for the petitioner's counsel. | |||
| This C.R.P (SR) is filed under Article $227$ of<br>$2.$ | |||
| Constitution of India challenging the<br>the | |||
| endorsement dated 17.07.2023 made in I.A.No. | |||
| (unnumbered) of $2023$ (C.F.R.No.2515)<br>in | |||
| I.A.No.243 of 2013 in O.S.No.159 of 2003 on the | |||
| file of the Principal Senior Civil Judge, Tirupati. | |||
| $3.$<br>The Registry of this Court returned the | |||
| above (C.R.P.(SR) with the following objection: | |||
| "Please clarify and state as to how this | |||
| CRPSR is entertainable, against the (Office | |||
| Objection, i.e, mere office objection of the | |||
| lower court is not a ground to file the CRP in | |||
| this Hon'ble High Court." | |||
| Learned counsel<br>for the<br>petitioner<br>4. | |||
| represented the same with the<br>following | |||
| endorsement: | |||
| "Although the endorsement is prior<br>to | |||
| numbering of this application, it was signed by | |||
| the Judicial Officer, amounting to judicial | |||
| orders. The matter was refused to be called on<br>bench even. Therefore, as petitioners have no | |||
| other relief, petition under Article 227 is | |||
| maintainable. "If the office is not convinced, | |||
| please place the petition before the Hon'ble | |||
| Court for necessary orders." | |||
- The petition has been placed before this Court. 6. Learned counsel for the petitioner submits that the plaintiff filed O.S.No.159 of 2003 on the file of Principal Senior civil Judge, Tirupati for partition. Preliminary decree dated 17.01.2008 was passed. In preparation of the final decree, on the plaintiff"s application, order was passed for sale of Item No.I of the plaint schedule property. The legal representatives of the deceased-2nd defendant (present petitioners) filed un-numbered I.A.No.____ of 2023 dated 05.05.2023 for setting aside the sale dated 06.04.2023. 7. The office of the learned Trial Court submitted, report with respect to the service no service of notice on the respondents in I.A. It also made endorsement that "there is no appeal intimation received by this court still so far", and also that "confirmation of sale scheduled, posted to 17.07.2023." 8. The above report is at page 24 of the petition. At page No.23, of the petition, the learned counsel for the petitioner submits, is the order of the Principal Senior Civil Judge, Tirupati, which reads as under: "Returned. The noted Sections has no application to the facts. Hence returned".
| 9.<br>Learned counsel for the petitioner submits |
|---|
| that<br>the<br>original<br>I.A.No.1<br>of<br>2023<br>was<br>then |
| returned under the order of<br>the learned Trial |
| Court.<br>The said order is "undated". |
| 10.<br>The original I.A has been filed along with |
| the present petition. |
| 11.<br>Learned counsel for the petitioner placing |
| reliance in Estralla Rubber vs. Dass Estate (P) |
| Ltd.,1<br>,<br>Shalini Shyam Shetty and another vs. |
| Rajendra Shankar Patil2<br>, Surya Dev Rai vs. |
| Ram Chander Rai and others3<br>, submits that the |
| present<br>C.R.P<br>under<br>Article<br>227<br>of<br>the |
| Constitution<br>of<br>India<br>is<br>maintainable.<br>The |
| objective<br>of Article 227 is to see that the courts |
| within<br>the<br>jurisdiction<br>of<br>the<br>High<br>Court,<br>act |
| within<br>their<br>bounds<br>as<br>also<br>for<br>promotion<br>of |
| public confidence in the administration of justice, |
| the High Court being custodian of justice. |
| 12.<br>Learned counsel for the<br>petitioner submits |
| that<br>the<br>petitioner"s<br>application<br>was<br>not<br>even |
| numbered.<br>It was filed specifically mentioning |
| under Order 21 Rules 90, 97, 100 and 101 CPC |
| read<br>with<br>Section<br>151<br>CPC.<br>Whether<br>those |
| provisions of law were applicable or not and the |
| petitioner"s application was maintainable or not, it |
| could be decided only after affording opportunity |
| of hearing to the petitioner but it could not be |
| returned by the order as passed by the learned |
| Principal Senior civil Judge, Tirupati. He submits |
| that the order also does not bear the date of the |
| judicial officer. |
<sup>1</sup> (2001) 8 SCC 97
2 (2010) 8 SCC 329
<sup>3</sup> (2003) 6 SCC 675
| 13.<br>He further submits that the objection by the | |
|---|---|
| Registry of this Court is also untenable. | |
| 14.<br>Considering the aforesaid, the Registry of | |
| this<br>Court<br>is<br>directed<br>to<br>allot<br>number<br>to<br>the | |
| present C.R.P. | |
| 15.<br>There appears to be nothing in respect of the | |
| report of the office of the learned Trial Court, | |
| pointing out any defect in the application so as to | |
| return<br>it<br>for<br>resubmission<br>after<br>rectifying<br>the | |
| defects. | |
| 16.<br>The rejection by the learned Trial Court is | |
| not on any ground of defect, but that the Sections | |
| noted has no application. | |
| 17.<br>Prima facie, even if the learned Trial Court | |
| was of the view that the noted Sections had no | |
| application to the facts, the petitioner should have | |
| been<br>given<br>opportunity<br>of<br>hearing<br>and<br>on | |
| consideration of the arguments appropriate order, | |
| should have been passed. | |
| 18.<br>Let<br>the<br>Court<br>concerned<br>submit<br>report, | |
| through learned Principal District Judge, Chittoor | |
| on the followings: | |
| i)<br>The order does not bear<br>any date. | |
| ii)<br>As to why opportunity of hearing was not | |
| afforded to the petitioner. | |
| iii)<br>Whether on the ground mentioned, the IA | |
| could be returned. | |
| iv)<br>Under<br>which<br>legal<br>provision<br>such<br>an | |
| order of return of IA could be passed. | |
| 19.<br>Post on 18.09.2023. | |
| 20.<br>The sale even if confirmed and the<br>sale |
|---|
| certificate,<br>even if issued, the same shall remain |
| subject to further orders in this petition. |
| 21.<br>Let the copy of this order be sent to the |
| Principal District Judge, Chittoor along with copy |
| of page Nos.8 to 24 of this petition. |
| 22.<br>Issuance of notice to the respondents will be |
| considered after receipt of the response from the |
| learned Principal District Judge, Chittoor. |
| ________ |
| RNT,J<br>Gk |
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