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Rolla Ramakrishna Rao and ors. Vs. Challagalla Brahmavathi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 142 of 1978
Judge
Reported inAIR1981AP29
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 90 and 90(3)
AppellantRolla Ramakrishna Rao and ors.
RespondentChallagalla Brahmavathi
Appellant AdvocateC. Poornaiah, Adv.
Respondent AdvocateM. Jagannadha Rao, Adv.
DispositionAppeal allowed
Excerpt:
.....order 21 rule 90 (3) dismissed without hearing - held, present case not being covered under sub rule 3 to rule 90 of order 21 dismissal without holding enquiry not sustainable. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the..........order 21, rule 90 c.p.c., questioning the sale of their house property on a number of grounds. the learned judge heard the counsel for judgment-debtors and held that there were no grounds to register the petition and proceed with the enquiry and rejected the petition.2. in this appeal, it is submitted by the learned counsel for the appellants that the learned judge erred in not numbering the petition and dismissing it without numbering it. it is submitted that he should have held an enquiry before dismissing the petition. we find merit in this contention. it is true that under order 21, rule 90 sub-rule (3) c.p.c. an application to set aside a sale need not be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was.....
Judgment:

Gangadhara Rao, J.

1. This appeal is filed by the judgment-debtors questioning the order of the Subordinate Judge, Kakinada, dismissing their petition under Order 21, Rule 90 C.P.C. even without numbering it, The judgment-debtors filed a petition under Order 21, Rule 90 C.P.C., questioning the sale of their house property on a number of grounds. The learned Judge heard the counsel for judgment-debtors and held that there were no grounds to register the petition and proceed with the enquiry and rejected the petition.

2. In this appeal, it is submitted by the learned counsel for the appellants that the learned Judge erred in not numbering the petition and dismissing it without numbering it. It is submitted that he should have held an enquiry before dismissing the petition. We find merit in this contention. It is true that under Order 21, Rule 90 Sub-rule (3) C.P.C. an application to set aside a sale need not be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up. But, that is not the position here. Therefore, it could not be rejected under Sub-rule (3).

3. In the result, we set aside the order of the learned Subordinate Judge and direct him to number the petition and hold an enquiry after giving opportunity to both the parties. Accordingly the appeal is allowed, but in the circumstances of the case without costs.


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