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2001 DIGILAW 1352 (AP)

Nampally Padma v. Vasavi and Company

2001-10-29

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD Mr. A. Ramakrishna reddy and Mr. Ashok Anand Kumar, the learned Counsel representing the respective parties. ( 2 ) THE CRP is filed against an order dated 4-9-2001 made in EP. No. 8/94 in os. No. 167/84 on the file of the II-Addl. Senior Civil Judge, Warangal. ( 3 ) THE respondent-decreeholder- plaintiff filed a suit OS No. 173/84 against the revision petitioners-de fend ants No. 1 to 4 representing one of the partners of the 7th defendant firm one Nampalli Gnaneshwar rao and also the other partners shown as defendant Nos. 5 and 6 - E. Papaiah and d. Sadashivudu. The said suit was decreed on 20-3-1990 and decree obtained by the respondent as plaintiff in OS No. 173/84 on the file of IInd Addl. Subordinate Judge at warangal, reads as follows: 1. "that the defendant No. 7 do pay to the plaintiff a sum of Rs. 50,000/- together with interest at rate of 12% of Rs. 50,000/- from the date of filing of the suit i. e. , 10-9-1984 till realisation. 2. The plaintiff be and is hereby directed to take steps for realisation of the decretal amount first against Defendant No. 7. 3. This Court doth further order and decree that in the event of properties of defendant no. 7 are found to be insufficient for realisation of the decreial amount the plaintiff is at liberty to proceed against the personal properties of Defendant no. 7 s partners or partner s legal representatives as the case may be". ( 4 ) THE revision petitioners, who are judgment debtors I to 4 in EP No. 8/94 in os No. 173/84, tiled a counter raising following objections, which reads as follows: "the EP is not maintainable either in law or in facts. The EP. , is filed under Order 21, rules 64 and 66 of CPC praying the honourable Court to attach the sell the EP, schedule specified property i. e. , h. No. 16-11-19/1 situate at Puppalagutta, warangal describing it as the property of jd. No. 7 i. e. , M/s. Bharani Fertilizers Depot, warangal. Jn fact, it is the self acquired property of late N. Gnaneshwar Rao. Further-, the said housing property was also one of the items in IP. Nos. No. 7 i. e. , M/s. Bharani Fertilizers Depot, warangal. Jn fact, it is the self acquired property of late N. Gnaneshwar Rao. Further-, the said housing property was also one of the items in IP. Nos. 10 of 1984, 11 of 1984 and OS No. 193 of 1984 on the file of the principal Subordinate Judge at Warangal, which matters were disposed of by a common judgment dated 29th December, 1995. The principal Subordinate Judge while disposing of the aforesaid matters in the common judgment appointed Sri MM Mallikarjuna rao, Advocate-Receiver to apply the estate of late Nampally Gnanehswar Rao, Erukulla papaiah and Dodda Sadashivudu to discharge the debts. Both IPs 10 of 1984 and 11 of 1984 have been filed by creditors numbering about 40 against these JDrs and other partners of M/s. Bharani Fertilizers depot. Individual claims of the parties have to be decided by the receiver in his discretion. Of course, the D. Hr. is not a party in the said IPs. Still the said common judgment is binding the D. Hr. herein. As such the EP schedule specified property is not available as it is to put it in auction as required by the D. Hr. directly. It is not out of place to mention here that the D. Hr is not claiming any privilege than other creditors of above IPs, on the basis of any mortgage of whatsoever nature over the ep Schedule specified property. When the ep Schedule specified property is not free from charges or encumbrances or otherwise to proceed further in the EP. The EP is not maintainable and deserves to be dismissed. All the aforesaid facts have been already brought to the notice of the D. Hr in the suit proceedings and suppressing the same, the present GP is filed. As such there are no bona fides in the present EP. The d. Hr. did not take any steps to came on record in any of the aforesaid matters and subsequent common judgment disentitles to the plaintiff from executing the decree in this EP. Insolvency Court ousted the jurisdiction of the Hon ble Court". ( 5 ) THE Court below, after hearing the parties, had overruled the objections of judgment-debtor Nos. 1 to 4 and aggrieved by the same, they had preferred the present revision. ( 6 ) MR. Insolvency Court ousted the jurisdiction of the Hon ble Court". ( 5 ) THE Court below, after hearing the parties, had overruled the objections of judgment-debtor Nos. 1 to 4 and aggrieved by the same, they had preferred the present revision. ( 6 ) MR. A. Ratnakrishna Reddy, the learned Counsel representing the revision petitioners had contended that the EP schedule property is the self-acquired property of one of the partners of D7 firm, mr. Nampally Gnaneshwar Rao, and there is a specific direction in the decree itself to take steps for realisation of the decretal amount first against the 7th defendant- partnership firm as such and further ordered in the event of the property of the 7th defendant being found to be insufficient for realisation of the decretal amount, then the respondent-decree holder-plaintiff is at liberty to proceed against the personal property of defendant No. 7 s partners or their legal representatives. The learned counsel also had strenuously contended that the Court below had lost sight of a specific direction of the decree lhat "in the event of properties of defendant No. 7 are found to he insufficient for realisation of the decretal amount, the plaintiff is at liberty to proceed against the personal properties of D. 7 s partners or the partner s legal representatives, as the case may be". The learned Counsel also had contended that the Court below had not appreciated this question at all and hence, the impugned order is liable to be set aside. ( 7 ) MR. Ashok Anand Kumar, the learned Counsel representing the respondent- decree holder-plaintiff had contended that there is absolutely no material available on record and in fact, this Court in Vasavi and company v. Nampally Padma and others, 1999 (2) ALD 309 = 1999 (2) ALT 305 , had already arrived at the conclusion that the order obtained attaching the properties of defendants before judgment continues to exist even after passing of decree. In the light of the said decision, the impugned order does not suffer from any legal infirmity. The learned Counsel also had contended that even otherwise it is not in dispute that the revision petitioners also are parties to the suit impleaded as legal representatives of one of the partners of 7th defendant firm mr. In the light of the said decision, the impugned order does not suffer from any legal infirmity. The learned Counsel also had contended that even otherwise it is not in dispute that the revision petitioners also are parties to the suit impleaded as legal representatives of one of the partners of 7th defendant firm mr. N, Gnaneshwar Rao and hence, the EP schedule properties also are liable to be proceeded against for realisation of the amount. The learned Counsel also had drawn my attention to the impugned order, the EP proceedings and also had contended that when it is not clear on record what properties are available with the 7th defendant for realisation of the amount, it cannot be said that the order of the Court below is unsustainable. ( 8 ) HEARD both the Counsel and perused the records. ( 9 ) IT is no doubt true that as contended by Mr. Ashok Anand Kumar, there is no material placed before the Court whether the EP schedule property is the self-acquired property of Mr. N. Gnaneshwar Rao or whether this property also is one of the assets of the 7th defendant firm or the property belonging to either 5th or 6th defendants i. e. , the other partners of the firm. However, a careful reading of the decree shows that only in the event of properties of D. 7 are found insufficient for realisation of the decretal amount, the plaintiff is at liberty to proceed against the personal properties of D7 s partners or partners legal representatives as the case may be. Since, the parties had not produced enough material in this regard, it appears that the Court had made the impugned order. In the light of the specific direction in the decree, the Court below should have decided this aspect and hence, I am inclined to set aside the order with a direction to the court below to give opportunity to both the parties to place necessary material to establish their respective contentions and the Court below after appreciating the material which will be placed by both the parties, if necessary, by giving opportunity to both the parties to adduce evidence also in this regard, decide the objections afresh, within a period of two months from the date of receipt of a copy of this order. The crp is allowed to the extent indicated above. No orders.