Khadar Baba Fancy Stores v. G. P. G. Chit Funds Private Limited
2008-08-11
P.S.NARAYANA
body2008
DigiLaw.ai
ORDER: Heard Smt. P. Vijaya Kumari, learned counsel representing revision petitioner and Sri Koka Srinivas Kumar, learned counsel representing first respondent. 2. This Court on 07.9.2007 made the following order: "Heard the learned counsel appearing for petitioner/ judgment-debtor No.1 (defendant No.1). Notice before admission, returnable in three weeks. The learned counsel appearing for petitioner is also permitted to take out personal notice by R.P.A.D., to the respondents and their counsel before the court below and file proof thereof into the court. There shall be interim stay of all further proceedings in E.P.No.67 of 2005 in O.S.No.315 of 2002 on the file of I Additional Junior Civil Judge, Visakhapatnam, until further orders. List the civil revision petition for "Admission" on 28.9.2007." 3. On 02.11.2007 while admitting the civil revision petition and directing listing of the civil revision petition for final hearing in usual course this Court in C.R.P.M.P.No.1079 of 2007 made the following order. "The interim stay granted by this court earlier is extended, until further orders, on condition of the petitioner depositing a sum of Rs.10,000/- (Rupees ten thousand only) initially, within a period of four (4) weeks from today, in default the order of the court below shall come into operation." 4. It is stated that the conditional order had been complied with. It is however brought to the notice of this Court that though the conditional order had been complied with, the first respondent-decree holder had not withdrawn the amount as on today. It is needless to say that the first respondent-decree holder-plaintiff is at liberty to withdraw the said amount lying in deposit without furnishing any security. 5. Smt. P. Vijayakumari, the learned counsel representing the revision petitioner-judgment debtor No.1-defendant No.1 would maintain that the learned I Additional Junior Civil Judge, Visakhapatnam, was unable to appreciate the facts and circumstances of the case in proper perspective. The counsel also would maintain that though sufficient material had been placed before the Court while praying for extension of time for payment of the instalment amount, the learned I Additional Junior Civil Judge, Visakhapatnam, totally erred in dismissing the said application without granting extension of time.
The counsel also would maintain that though sufficient material had been placed before the Court while praying for extension of time for payment of the instalment amount, the learned I Additional Junior Civil Judge, Visakhapatnam, totally erred in dismissing the said application without granting extension of time. The learned counsel also would maintain that the petitioner is ready and willing to discharge the rest of the decretal amount, if reasonable instalments are granted and the complete decretal amount would be discharged within a reasonable time and, hence, the civil revision petition may be disposed of with suitable directions in this regard. 6. Per contra, Sri Koka Srinivas Kumar, learned counsel representing the first respondent-decree holder had taken this Court though the historical background of this litigation and would maintain that the conduct of the revision petitioner would clearly go to show that the request made by him is not a bona fide request at all. The counsel also pointed out to the averments made in the affidavit filed in support of the vacate stay application C.R.P.M.P.No.4444 of 2008 and would maintain that in the light of the facts and circumstances the learned Judge is well justified in declining to extend time. The learned counsel also would maintain that it is no doubt true that some amount had been received by the decree holder with fond hope that the revision petitioner may be prompt in making payments. But however, the conduct of the revision petitioner would go to show that the revision petitioner is not interested in discharging the rest of the decretal amount. Even otherwise the counsel would maintain that when the very executing court cannot grant instalments, filing an application of this nature under Section 148 of the Code of Civil Procedure is a misconceived remedy and, hence, viewed from any angle the civil revision petition to be dismissed. 7. First respondent-decree holder filed E.P.No.67 of 2005 praying for arrest of the judgment debtors and the revision petitioner herein filed his counter on 23.8.2006 denying the averments made in the E.P and the other judgment debtors 2 and 3 adopted the counter filed by the revision petitioner by filing memo of adoption. Certain facts relating to recording of evidence also had been narrated. 8.
Certain facts relating to recording of evidence also had been narrated. 8. Before commencement of his cross-examination it appears the petitioner approached the first respondent-decree holder along with his counsel and requested him to receive the E.P amount by way of instalments within four months and requested to receive Rs.5,000/- as a token amount and further assured that he will pay an amount of Rs.17,000/- per month and the balance in the last instalment. On 22.11.2006 it appears the petitioner filed affidavit praying the court to record the same. The counsel for decree holder endorsed on the said affidavit to the effect that the revision petitioner may be directed to pay Rs.17,000/- on 15th day of each month and on failing of payment of any of the instalments, the first respondent-decree holder be at liberty to proceed further in the matter. The matter was adjourned to 20.12.2006 without making any further order. On 20.12.2006 the petitioner paid an amount of Rs.10,000/- towards part satisfaction of the instalment. Since the total amount to be paid by way of instalments as agreed by the petitioner had not been complied with, the learned judge adjourned the matter to 29.12.2006 and directed the petitioner to pay the remaining balance of Rs.7,000/- on 29.12.2006. On 29.12.2006 the petitioner paid an amount of Rs.7,000/- towards part satisfaction of the E.P. The matter was further adjourned to 22.01.2007. On 22.01.2007 the petitioner filed an application under Section 148 read with Section 151 of the Code of Civil Procedure praying the court to grant one month time for payment of second instalment on the ground that his mother was severely injured and no doubt further facts also had been narrated. It is no doubt true that the said application was dismissed recording reasons that sufficient material had not been placed before the Court to establish convincing reasons warranting the extension of time. 9. Section 148 of the Code of Civil Procedure reads as hereunder.
It is no doubt true that the said application was dismissed recording reasons that sufficient material had not been placed before the Court to establish convincing reasons warranting the extension of time. 9. Section 148 of the Code of Civil Procedure reads as hereunder. "Enlargement of time.--- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, (not exceeding thirty days in total,) even though the period originally fixed or granted may have expired." Section 151 of the Code of Civil Procedure reads as hereunder: "Saving of inherent powers of Court.--- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." 10. Here is a peculiar case where when the execution proceedings were pending, may be that the decree holder also was anxious of recovering the amount, the decree holder consented for receiving of the decretal amount by way of instalments. It is needless to say that the said promise made by the revision petitioner also had been observed more in breach than in compliance. It is needless to say that the executing court has no power to grant instalments. It is not the case of either of the parties that the decree itself was an instalment decree or at appropriate stage any order permitting payment of decretal amount in instalments had been made by the court in the original suit. It may be that by volition of parties they came to an understanding and in a way at a particular point of time the Court had put its seal of approval, but however, the same was not carried to its logical end, since the revision petitioner committed default. 11. In Seelam Ramadevi V. Gadiraju Yanadi Raju this Court while following the cases Vemula Srinivasa Rao V. Thumepalli Venkateswarlu ( 2001 (6) ALT 791 (D.B.) and G. Laxmaiah V. State Bank of Hyderabad, Madanapuram, Mahaboobnagar ( 2005 (3) ALT 539 ) observed that the executing court has no power to grant instalments merely because of volition of parties certain amounts had been paid and received. This may not seriously alter the situation.
This may not seriously alter the situation. Though the reasons recorded by the learned Judge may not be convincing, in the light of the facts and circumstances, especially taking the conduct of the revision petitioner into consideration, the dismissal of the application praying for extension of time cannot be found fault. 12. Accordingly, the civil revision petition being devoid of merit, the same shall stand dismissed. No order as to costs.