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2004 DIGILAW 615 (AP)

V. Divakara Rao v. V. Srinivasa Rao

2004-06-29

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS civil revision petition is filed against the order dated 2. 5. 2003 passed by the Senior Civil Judge, Tanuku in E. A. No. 160 of 2003 in E. P. No. 80 of 2002 in O. S. No. 96 of 2000. ( 2 ) THE respondent filed O. S. No. 96 of 2000 against the petitioners for recovery of a sum of Rs. 1,00,000/-, on the strength of a promissory note, in the Court of Senior civil Judge, Tanuku. The said suit was decreed ex pane on 25. 4,2001. Thereafter, he initiated execution proceedings by filing e. P. No. 80 of 2002. The petitioners received notices in the E. P. According to them, they were not aware of the suit, passing of the ex parte decree therein or filing of E. P. till then. The petitioners state that they filed an application under Order DC, Rule 13 c. P. C. to set aside the ex parte decree and since there was delay of about 600 days in filing the petition, they filed LA. under section 5 of the Limitation Act. While the said application was pending, the salaries of all the three petitioners were attached through orders dated 3. 4. 2003. Thereupon, the petitioners filed E. A. No. 160 of 2003 to stay further proceedings in the execution petition in view of the pendency of the applications under Order DC, Rule 13 C. P. C. and Section 5 of the Limitation Act. The trial Court dismissed the same through the order under revision. ( 3 ) LEARNED Counsel for the petitioners submits that once the application under order DC, Rule 13 C. P. C. together with an application under Section 5 of the Limitation act is pending, the Trial Court ought to have stayed the proceedings in the execution petition. He contends that the petitioners were not at all parties to promissory note and the ex parte decree cannot be maintained against them. ( 4 ) LEARNED Counsel for the respondent, on the other hand, submits that even a perusal of the affidavit filed by the petitioners in the E. A. discloses that they were aware of filing of the suit and despite the same, they have not chosen to participate in it. He contends that once the respondent obtained a decree, he cannot be denied the benefits of it. He contends that once the respondent obtained a decree, he cannot be denied the benefits of it. ( 5 ) THE petitioners suffered an ex parte decree in O. S. No. 96 of 2000. They realized this fact only after about 600 days, when notice was served upon them in E. P. No. 80 of 2002. They filed two applications, viz. , one under Order DC, Rule 13 C. P. C. to set aside the ex parte decree, other under section 5 of the Limitation Act to condone the delay in presentation of the application. Since their salaries were attached on 3. 4. 2003, they filed the present E. A. for stay of further proceedings in the Execution petition. ( 6 ) WHEN the judgment debtors approached the Court to set aside the ex parte decree passed against mem, the propriety demands that the further proceedings in E. P. are stayed till the application filed under Order DC, Rule 13 c. P. C. or the one under Section 5 of the limitation Act is disposed of or at least for a reasonable time, in a given case, there may be strong reasons for not staying the execution proceedings. However, such reasons should be evident from the order passed by the Court on such applications. In the present case, the Executing Court had passed a cryptic and laconic order, which reads as under:"heard. Perused petition and counter. No merits in the petition to stay the execution proceedings. Hence, petition dismissed. No costs. "to say the least, this hardly constitutes any adjudication worth its name. The satisfaction or the absence of it of a Court, on an application filed by one of the parties, should be dealt with extensively with reference to the facts pleaded by the parties and those borne out by the record. It is only when such reasons are furnished that the appellate or revisional Court would be in a position to appreciate the same. The executing Court did not address itself to the question as to the pendency of the application under Order DC, Rule 13 C. P. C. or the one under Section 5 of the Limitation Act. Any further discussion is likely to have its impact on the adjudication of other I. As. ( 7 ) HENCE, the order under revision is set aside. Any further discussion is likely to have its impact on the adjudication of other I. As. ( 7 ) HENCE, the order under revision is set aside. To avoid further complications, it is directed that the Executing Court shall take up-the adjudication of E. A. No. 160 of 2003, I. A. filed by the petitioners under section 5 of the Limitation Act and depending on the result of that application, la. filed under Order IX, Rule 13 C. P. C. also simultaneously. ( 8 ) WHILE granting interim orders on 13,5. 2003, this Court imposed a condition that the petitioners shall deposit a sum of rs. 25,000/ -. Learned Counsel for the petitioners submits that the amount has been deposited. The respondent shall be entitled to withdraw the same after executing a personal bond to refund the amount in the event of the suit being dismissed. The attachment of the salaries of the petitioners ordered by the Executing Court on 3. 4. 2003 shall remain suspended till disposal of E. A. ( 9 ) THE civil revision petition is accordingly allowed.