Shaik Tajuddin v. Sumanth Chit Funds, Bandarugudem Village, Khammam Dist.
2001-10-10
L.NARASIMHA REDDY
body2001
DigiLaw.ai
L. NARASIMHA REDDY, J. ( 1 ) THE petitioners are defendants 2 to 7 in OS No. 35 of 1996 on the file of the Senior Civil Judge, at Kothagudem. The suit was filed by the respondent against one Jagannath Agarwal and the petitioners for recovery of certain amounts. The suit was decreed on 10-3-1998 and the decree became final. The respondent filed EP No. 182/98 against the petitioners only. They were set exparte in the EP on 10-8-1999. Thereafter, they filed an application to set aside the order dated 10-8-1999 with an application to condone the delay of 32 days. On 8-12-1999, they filed EA (SR) No. 5568/99 for dismissal of the EP claiming that in view of Rule 36 of A. P. Agency Rules the civil Court has no jurisdiction to entertain the suit or execution proceedings in the agency areas and that Kothagudam being an agency area, the suit as well as the execution proceedings are without jurisdiction. However, on the same day i. e. , 8-12-1999, an order was parsed in EP No. 182/1998 ordering arrest of the petitioners. The said order is challenged in this civil revision petition. ( 2 ) HEARD the arguments of Mr. Hari Sreedhar, the learned Counsel for the petitioners and Mr. K. R. Anji Reddy, the learned Counsel for the respondent. ( 3 ) FROM the facts stated above, it is evident that the petitioners herein have filed EA (SR) No. 5568/99 for dismissal of the EP, in view of Rule 35 of the A. P. Agency Rules. This fact was not disputed by the learned Counsel for the respondent. The provisions invoked and the relief claimed in the EA go to the root of the matter and have a direct bearing on the validity of the decree passed in the suit as well as the execution proceedings. When such an application was made and such important plea was raised, it was obligatory on the part of the executing Court to decide that EA before taking any further steps. There was no justification in keeping aside that order and ordering arrest of the petitioners herein. ( 4 ) IT is also to be seen that before ordering arrest of the judgment debtors (JDRs), the executing Court has to record a finding that the JDRs have sufficient means to satisfy the decree, but have failed to pay the decretal amount.
There was no justification in keeping aside that order and ordering arrest of the petitioners herein. ( 4 ) IT is also to be seen that before ordering arrest of the judgment debtors (JDRs), the executing Court has to record a finding that the JDRs have sufficient means to satisfy the decree, but have failed to pay the decretal amount. Without recording such a finding, the executing Court cannot order arrest of the JDRs. The order under revision does not indicate that any such finding was recorded. Therefore, the impugned order dated 8-12-1999 is set aside. The executing Court is directed to hear and dispose of EA (SR) No. 5568/99 before initiating any other steps in the EP. The civil revision petition is accordingly allowed, but in the circumstances of the case, there shall be no order as to costs.