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2006 DIGILAW 805 (AP)

Mokati Gangayya v. Satyavolu Paparao

2006-07-12

P.S.NARAYANA

body2006
ORDER Heard Sri M.R.K. Chakravarthi, representing Sri M.V. Durga Prasad, learned counsel for the Petitioners-Judgment-Debtors and Sri. K.S. Murthy, learned counsel representing the respondent-Decree Holder. 2. The civil revision petition is filed as against the order, dated 15-04-2002 in E.P.No.120 of 1997 in O.S.No.77 of 1981 on the file of I-Additional Junior Civil Judge, Rajahmundry. The said E.P. was filed under Order XXI Rule 32 of the Code of Civil Procedure (hereinafter in short referred to as Code for the purpose of convenience) praying for attachment of properties and detention of the revision petitioners-Judgment Debtors for non-compliance of the directions made in A.S.No.12 of 1989 on the file of II-Additional District Judge, Rajahmundry. The learned I-Additional Junior Civil Judge, Rajajmundry on the strength of Exs.A-1 and A-2, the office copy of reply by decree holder to the notice sent by Judgment-Debtor No.1 and registered notices issued by Judgment Debtor No.1 through his advocate, had issued warrant as per clause 3 of the decree in A.S.No.12 of 1989 aforesaid by 25-04-2002. Aggrieved by the same the present civil revision petition is preferred. 3. Sri M.R.K. Chakravarthy, learned counsel representing the revision petitioners - Judgment-Debtors would contend that the exchange of notices would clearly go to show that the directions in fact had been complied with. But despite the same, only to harass the revision petitioners, the respondent had thought of this E.P. The learned counsel also had taken this Court through the contents of the respective notices and the stand taken by the respective parties in this regard. The learned counsel also would submit that the learned Judge erred in ordering the attachment of property without deciding EANo.12290f 1997 which was filed for appointment of advocate Commissioner. The learned counsel also would submit that this is a matter concerned with the compliance of the directions made by the appellate Court in A.S.No.12 of 1989 aforesaid and it is not a simple case of money decree and non-satisfaction thereof and hence, in the peculiar facts and circumstances, the impugned order may have to be set aside. The learned counsel also placed strong reliance on Ambati Narsayya v. M. Subbarao1. 4. The learned counsel also placed strong reliance on Ambati Narsayya v. M. Subbarao1. 4. Sri K.S. Murthy, learned counsel representing the respondent - decree holder would contend that when the directions were complied with or the decree had been satisfied it is the bounden duty of the Judgment-Debtor to inform the Court and when the said procedure was not followed the consequence would automatically follow. The learned counsel placed strong reliance on Sultana Begum v. Premchand Jain2. The learned counsel in all fairness would submit that it is true that no evidence was let in by both the parties, except marking of the documents i.e., EX.A-1 office copy of reply by the decree holder to the notice sent by the judgment debtor No.1 dated 06-06-1995, EX.A-2 registered notice issued by the judgment debtor No.1 through his advocate to the decree holder dated 31-05-1995. However, the learned counsel would contend that letting in of oral evidence may not be necessary at all. Since the procedural requirements as specified under Order XXI Rule 2 of the Code had not been followed and hence, inasmuch as the impugned order does not suffer from any illegality whatsoever, the civil revision petition is liable to be dismissed. 5. Heard both the counsel. Perused the impugned order. 6. At the outset, it may be relevant to glance at the relevant portion of the Judgment in A.S.No.12 of 1989 on the file of II Additional District Judge, East Godavari District at Rajahmundry. Para 18 reads as hereunder: "Now, it has to be seen whether there is any justification in committing the 1st defendant to civil prison or whether alternative direction can be given, so that the wrong done to the plaintiff can be undone. Admittedly under Order 39 Rule 2(a) C.P.C. Court has got two ways of inflicting punishments on a person who disobeys the injunction orders or any order passed by the Court. The first mode is to attach the properties of that person and give directions to restore the wrong done to the other person; and the second mode is to commit the said person to civil prison. Admittedly, the defendants did not encroach into the plaintiffs site while digging the earth. The first mode is to attach the properties of that person and give directions to restore the wrong done to the other person; and the second mode is to commit the said person to civil prison. Admittedly, the defendants did not encroach into the plaintiffs site while digging the earth. Because he was making constructions in his own site, though he dug along the boundary line, due to which some loss might have been occurred to the plaintiffs and the same can be compensated either by way of damages or by directing the defendants to restore it to the same level. This order, coupled with the attachment of the property of the defendants would have been sufficient, instead of committing the 1st defendant to civil prison. Therefore, the learned District Munsif though perfectly justified in awarding imprisonment for two weeks in view of the above facts, this Court modifies the said order and directs the defendants to restore the level to its original line as sought by the plaintiff in his I.A.No.1754 of 1987 and the defendants property will be attached and if the defendants fail to comply with the above order, then the property of the defendants will be sold and out of the sale proceeds, the property of the plaintiff will be restored to its original shape as desired by the plaintiff." For the non-compliance of these directions, the present E.P. was filed. It is stated that the decree holder earlier filed E.P.No.307 of 1996 for recovery of suit costs and the same was closed on 11-03-1997. Specific stand is taken by the revision petitioners that if these directions were not complied with even at that time these objections could have been taken and this would go to show that there were no bona fides on the part of the respondent decree holder and only to harass the petitioners - judgment debtors, this E.P. is though of. It is also stated that the expenses for noncompliance even if to be taken into consideration, it would not justify attachment of the property worth about Rs. 25 lakhs. 7. In para 2 of the counter in E.P.No.120 of 1997, it was stated that the petitioner filed E.P.No.307 of 1996 for execution of the decree for recovery of costs only. It is also stated that the expenses for noncompliance even if to be taken into consideration, it would not justify attachment of the property worth about Rs. 25 lakhs. 7. In para 2 of the counter in E.P.No.120 of 1997, it was stated that the petitioner filed E.P.No.307 of 1996 for execution of the decree for recovery of costs only. Because the respondents complied with the decree in all other respects, the decree holder had not put forth in the E.P. the present claim and the said E.P. was closed on 11-03-1997. It was also stated in para 3 of the counter that a multistoried building was got constructed in the sites of the respondents in the year 1994 and by the time of commencement of the construction, the condition of the decree in the suit and appeal were fulfilled by the first respondent in the presence of mediators and the petitioner and that suppressing the true facts this E.P. was filed by the petitioner who is adopting litigious and hostile attitude towards the respondents without just or reasonable cause. It was also stated that there were also no bona fides in the said E.P. It is also not in serious controversy that E.A.No.1229 of 1997 was filed for appointment of advocate commissioner and it appears that no orders as such were made and the impugned order ultimately was made by the learned judge. Order XXVI Rule 18-A of the Code dealing with the application of Order to execution proceedings specifies that the provisions of this Order shall apply so far as may be in proceedings of execution of a decree or an order. It is needless to say that when an application for appointment of advocate commissioner was filed at the earliest point of time, the learned Judge not disposing of the said E.A. and making an order in the E.P. in the considered opinion of this Court, is not just and proper. Strong reliance was placed on a decision of the Apex Court in Ambati Narsayya v. M. Subbarao (1 supra), wherein the Apex Court held that "There is a duty cast upon the Court under O.21, R.64 to sell only such property or a portion thereof as necessary to satisfy the decree. It is a mandate of the legislature, which cannot be ignored." 8. It is a mandate of the legislature, which cannot be ignored." 8. The learned counsel representing the respondent - decree holder placed strong reliance on the decision of the Apex Court in Sultana Begum v. Premchand Jain (2 supra) wherein the Apex Court while dealing with Order XXI Rule 2 of the Code observed: "Order XXI, Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the mature of decree, and such money is paid out of Court, the decree-holder has to certify such payment to the Court whose duty it is to execute the decree and that Court has to record the same accordingly. Similarly if a decree irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that- Court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the right to inform the Court of such payment or adjustment and to apply to that Court for certifying that payment or adjustment after notice to the decree-holder. Then comes sub-rule (3) which provides that a payment of adjustment which has not been certified or recorded under sub-rule (1) or (2), shall not be recognised by the Court executing the decree." 9. There cannot be any dispute or quarrel relating to the prepositions laid down by the Apex Court in the decisions referred to supra. As can be seen from the impugned order relating to the compliance or non-compliance of the orders made by the appellate Court, there is assertion by one party relating to the same and there is denial by another party. This is a disputed question of fact. Except marking some notices, no evidence was let in by either of the parties. In a matter of this nature, recording findings without any evidence whatsoever, in the considered opinion of this Court, cannot be sustained. Without expressing any further opinion on the said ground the impugned order is hereby set aside and the matter is remitted to the learned Judge to give opportunity to both the parties to let in necessary evidence and record findings afresh on the strength of such evidence, which may be let in by both the parties. Without expressing any further opinion on the said ground the impugned order is hereby set aside and the matter is remitted to the learned Judge to give opportunity to both the parties to let in necessary evidence and record findings afresh on the strength of such evidence, which may be let in by both the parties. Learned counsel for the respondent-decree holder states that the respondent-decree holder is at very advanced age and hence, there is every urgency in the matter. Inasmuch as for non recording of evidence, the matter is being remitted to the learned Judge, the learned judge to dispose of the matter at the earliest point of time preferably within a period of three months from the date of receipt of a copy of this order. 10. The civil revision petition is allowed to the extent indicated above. No order as to costs.