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Andhra High Court · body

2020 DIGILAW 760 (AP)

Gundeboina Naannaiah v. Gundeboina Venkateswarlu

2020-12-02

BATTU DEVANAND

body2020
ORDER : 1. This civil revision petition: is filed against the order, dated 20.6.2019 in E.P. No. 95 of 2014 in O.S. No. 50 of 2014 on the file of the Principal Junior Civil Judge, Macherla. 2. The petitioner is defendant and respondent is plaintiff in the suit proceedings. 3. As per the permission accorded to the petitioner by this Court on 16.6.2020, the Counsel for the petitioner issued notice to the respondent. A memo of proof of service was filed on 23.7.2020 in which it was stated that the notice sent to the respondent by Registered Post was delivered to him on 1.7.2020 as per the “Track consignment” of the Postal Department. Inspite of service of notice, there is no appearance made on behalf of the respondent. 4. The respondent filed O.S. No. 50 of 2014 against the petitioner for recovery of an amount of Rs. 94,126/- basing on the promissory note before the Principal Junior Civil Judge Court, Macherla. The said suit was decreed ex-parte on 5.5.2014 against the petitioner. The respondent initiated Execution Proceedings by filing E.P. No. 95 of 2014. The petitioner received notice on 26.11.2014 in the E.P. According to him, he was not aware of the suit and passing of the ex-parte decree therein or filing of E.P. till receipt of the notice. The petitioner filed an application in I.A. No. 964 of 2014 in O.S. No. 50 of 2014 under Order 9 Rule 13 and Section 151 of C.P.C. seeking to set aside the ex-parte decree, dated 5.5.2014. The respondent filed counter-affidavit in I.A. No. 964 of 2014. The petitioner also filed a petition in I.A. No. 198 of 2018 in I.A. No. 952 of 2014 under Order 16 Rule 1(2) and Section 151 of C.P.C. to issue summons to the Post Master concerned to attend the Court to give evidence with regard to registered letter in the suit addressed to the petitioner with relevant registers and also to issue summons to the concerned Process Server for the purpose of giving evidence. While the said applications are pending, the order, dated 20.6.2019 in E.P. No. 95 of 2014 was passed by the execution Court allowing the E.P. holding that the Decree Holder is entitled to proceed with the E.P. Against the same, the present civil revision petition is filed. 5. Heard Sri Sasanka Bhuvanagiri, learned Counsel for the petitioner. 6. While the said applications are pending, the order, dated 20.6.2019 in E.P. No. 95 of 2014 was passed by the execution Court allowing the E.P. holding that the Decree Holder is entitled to proceed with the E.P. Against the same, the present civil revision petition is filed. 5. Heard Sri Sasanka Bhuvanagiri, learned Counsel for the petitioner. 6. Learned Counsel for the petitioner submits that the decree was passed ex-parte without service of notice to the petitioner/defendant in the suit. The petitioner came to know about the ex-parte decree, dated 5.5.2014 only after receipt of the notice in the execution petition. Immediately, he filed I.A. No. 964 of 2014 in O.S. No. 50 of 2014 under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree. He further submits that the petitioner also filed I.A. No. 198 of 2018 in I.A. No. 952 of 2014 under. Order 16 Rule 1(2) of C.P.C. to issue summons to the Post Master concerned to attend the Court and give evidence with regard to the refusal of registered letter by the petitioner and also to issue summons to the concerned Process Server for the purpose of giving evidence regarding the refusal of summons by the petitioner. The grievance expressed by the learned Counsel is that the execution Court proceeded with the Execution Proceedings and allowed the E.P. as and when both the I.A. Nos. 964 of 2014 and 198 of 2018 are pending before the Court below. 7. Learned Counsel for the petitioner further submits that allowing the E.P. during the pendency of the interlocutory applications filed by the petitioner will give rise to conflict of orders by the same Court, if the interlocutory applications filed by the petitioner against the ex-parte decree are allowed. Learned Counsel would contend that the finding of the Court below that the judgment debtor did not express his willingness to pay the decreetal amount is erroneous due to reason that the judgment debtor is challenging the ex-parte decree and the debt amount. He also filed written statement alongwith I.A. No. 964 of 2014 disputing the debt. Finally he argued that the properties sought to be attached in E.P. is not in his possession and disposing of E.P. without deciding the petition filed to set aside the ex-parte decree is against equity and principles of natural justice. 8. He also filed written statement alongwith I.A. No. 964 of 2014 disputing the debt. Finally he argued that the properties sought to be attached in E.P. is not in his possession and disposing of E.P. without deciding the petition filed to set aside the ex-parte decree is against equity and principles of natural justice. 8. Admittedly, the petitioner suffered an ex-parte decree in O.S. No. 50 of 2014. He came to notice this fact only after service of notice upon him in E.P. No. 95 of 2014. Thereafter, he filed two applications i.e. I.A. No. 964 of 2014 under Order 9 Rule 13 of C.P.C. to set aside the ex-parte decree and other application in I.A. No. 198 of 2018 in I.A. No. 952 of 2014 under Order 16 Rule 1(2) of C.P.C. Alongwith the application to set aside the ex-parte decree, the petitioner filed his written statement disputing the debt. 9. In the averments made in the affidavit filed alongwith I.A. No. 198 of 2018 the petitioner took specific plea that the respondent maintained the things and got endorsed on the Court summons that the petitioner refused the summons and he also got endorsed on the registered post that the petitioner was continuously absent at that time and he clearly stated that both those endorsements are false. To establish the bona fides that notice and summons are not properly served on the petitioner, he sought examination of the Post Master concerned and the concerned Process Server. 10. The petitioner filed his counter in E.P. in which it was clearly stated that I.A. No. 964 of 2014 and I.A. No. 198 of 2018 are pending before the Court below. 11. When the petitioner approached the Court below to set aside the ex-parte decree passed against him, the propriety demands that the further proceedings in E.P. are to be kept pending till the application filed under Order IX Rule 13 of C.P.C. and the application filed under Order XVI Rule 1(2) of C.P.C. are disposed of. The executing Court, in the present case, allowed the E.P. without considering the fact that the applications filed under Order IX Rule 13 of C.P.C. and under Order XVI Rule 1(2) of C.P.C. by the petitioner are pending before the Court below. The executing Court, in the present case, allowed the E.P. without considering the fact that the applications filed under Order IX Rule 13 of C.P.C. and under Order XVI Rule 1(2) of C.P.C. by the petitioner are pending before the Court below. The reasoning given by the Court below to allow the E.P. that the plea of the petitioner that he has no interest and possession over the E.P. schedule property is not trustworthy and reliable because no person is in possession and enjoyment of the attached property did not file a petition under Order XXI Rule 58 of C.P.C. to show their interest over the E.P. schedule property. The execution Court also observed that if the petitioner expressed his readiness and willingness to pay the decreetal amount to the respondent, there is no need to proceed with the E.P. and to bring the attached property for sale. These reasons given by the execution Court for allowing the E.P. are not reasonable and unsustainable. 12. As seen from the averments of the written statement filed by the petitioner while he filing an application to set aside the ex-parte decree, he specifically denied the debt and as such, expressing readiness and willingness to pay the decreetal amount by him does not arise till the disposal of the interlocutory application filed by him in the suit. 13. The Execution Court ought to have disposed the interlocutory applications filed by the petitioner before disposing the execution petition filed by the respondent. Allowing the E.P. definitely, will give rise to conflict orders by the same Court, if the interlocutory applications filed by the petitioner, are allowed. As such, in the considered opinion of this Court, the order of the execution Court allowing the E.P. during the pendency of the interlocutory applications filed by the petitioner in the suit and without disposing the same and passing orders in execution petition is illegal, unsustainable, untenable and contrary to the procedure contemplated under law. 14. This Court is fortified by the view taken by this High Court in a decision rendered in V. Divakar Rao and Others vs. V. Srinivasa Rao, 2004 (5) ALD 626 , while dealing with the similar set of facts, Justice L. Narasimha Reddy opined at Para No. 6 as extracted hereunder: “6. 14. This Court is fortified by the view taken by this High Court in a decision rendered in V. Divakar Rao and Others vs. V. Srinivasa Rao, 2004 (5) ALD 626 , while dealing with the similar set of facts, Justice L. Narasimha Reddy opined at Para No. 6 as extracted hereunder: “6. When the judgment debtors approached the Court to set aside the ex-parte decree passed against them, the propriety demands that the further proceedings in E.P. are stayed till the application filed under Order IX Rule 13 C.P.C. or the one under Section 5 of the Limitation Act is disposed of or atleast for a reasonable time.” 15. For the above mentioned reasons, the order under revision is set aside and accordingly, the civil revision petition is allowed. 16. It is further directed that the Principal Junior Civil Judge at Macherla shall take up the adjudication of execution proceedings after disposal of the I.A. No. 964 of 2014 filed under Order IX Rule 13 of C.P.C. and I.A. No. 198 of 2018 in I.A. No. 952 of 2014 filed under Order XVI Rule 1(2) of C.P.C. in O.S. No. 50 of 2014 to avoid further complications. 17. This Court on 7.9.2020 ordered interim suspension of operation of the order, dated 20.6.2019 passed in E.P. No. 95 of 2014 on condition of the petitioner deposits 50% of the E.P. amount to the credit of the suit in O.S. No. 50 of 2014 on the file of the Principal Junior Civil Judge at Macherla. The learned Counsel for the petitioner submits that in compliance of the said interim order, the petitioner deposited the said amount in the Court below. The said amount shall be kept in Fixed Deposit till the completion of the proceedings and the party who succeeds shall be entitled to withdraw the same. 18. There is no order as to costs. 19. As a sequel, miscellaneous petitions, if any, pending in this revision petition shall stand closed.