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2022 DIGILAW 788 (AP)

Tatineni Sri Devi v. Parise Mamillaiah

2022-08-24

BANDARU SYAMSUNDER

body2022
JUDGMENT Bandaru Syamsunder, J. - This Civil Revision Petition is filed by the petitioners/Judgment Debtors/defendants under Section 115 of Civil Procedure Code (in short CPC) against the Orders passed by the learned Senior Civil Judge, Avanigadda, in E.P. No. 78 of 2015 in O.S. No. 189 of 2013, dated 14.10.2016, wherein and whereby the learned Executing Court allowed the execution petition filed by the respondent/DHr holding that execution petition schedule property of revision petitioners/JDrs is liable to be attached and can be sold for realization of debt due to the respondent/DHr. 2. The case of the revision petitioners in brief is that as per orders of the executing court, on receipt of notice the revision petitioners made appearance and also filed counter in execution petition stating that they preferred appeal suit against Judgment and decree in O.S. No. 189 of 2013 wherein they sought for stay of execution of decree of the suit vide A.S.(SR). No. 457 of 2016 on the file of High Court of Andhra Pradesh, which is pending and prays to dismiss the petition. 3. As per the information available to this Court basing records a suit has been filed by the respondent/DHr in O.S. No. 189 of 2013 against the revision petitioners/JDrs on the basis of pronote said to have been executed by one Mr. T. Rama Krishna and the 1st petitioner/1st JDr and thereafter suit was decreed on 06.10.2015 wherein trial court directed the revision petitioners/JDrs to pay a sum of Rs. 9,85,000/- from out of the estate of the deceased Mr. Rama Krishna and also casting personal liability on the 1st revision petitioner/1st JDr, which revision petitioners failed to pay due to that the respondent sought attachment of immovable property and sale in Court auction for realization of decretal debt. 4. The learned Executing Court after hearing both sides allowed execution petition over ruling objections raised by the revision petitioners and held that execution petition property is liable to be attached and can be brought to sale for realization of debt due to the respondent/DHr. 5. Aggrieved by the orders passed by the trial Court, the present Civil Revision Petition is filed by the JDrs on the ground that one Mr. E. Lakshmi Narayana is not their advocate but they engaged Mr. D.B.C.L.V. Prasad as their counsel and one Mr. 5. Aggrieved by the orders passed by the trial Court, the present Civil Revision Petition is filed by the JDrs on the ground that one Mr. E. Lakshmi Narayana is not their advocate but they engaged Mr. D.B.C.L.V. Prasad as their counsel and one Mr. K. Samba Siva Rao and Eswararao are his juniors, who also filed vakalat on behalf of the revision petitioners but executing court passed orders without taking into consideration of the said fact due to that it is illegal and unsustainable. They also alleged that respondent/DHr played fraud. It is also the contention of the revision petitioners that suit in O.S. No. 189 of 2013 filed by the respondent/DHr was decreed on 06.10.2015 against which they preferred A.S. No. 113 of 2016, which is pending and attachment of their property and auctioning the same without following the procedure prescribed under law is illegal and against the principles of natural justice, they prays to allow the revision petition and set aside the orders passed by the executing Court on 14.10.2016. 6. I have heard learned counsel for the revision petitioners. 7. It is the contention of the learned counsel for the revision petitioners that the revision petitioners have not engaged advocate Mr. Lakshmi Narayana but the respondent played fraud and obtained the orders from the executing Court. She submits that today case is posted for sale of execution petition schedule properties belonged to the petitioners though appeal preferred by the petitioners before this Court is pending, she prays to allow the revision petition. 8. Now the issue that emerges for consideration of this Court is:- 'Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?' POINT:- 9. Before going into the merits of the case, it would be beneficial to quote Order XXI Rule 54 of CPC, which reads as under:- 54. Attachment of immovable property.- (1) Where the property is immovable, the attachment shall be made by an Order prohibiting the judgment debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge. (1) The Order shall also require the judgment debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. (1) The Order shall also require the judgment debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. (2) The Order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the Order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court house, and also, where the property is land paying revenue to the government, in the office of the Collector of the District in which the land is situate and, where the property is land situate in village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.) 10. It is admitted fact that the respondent, who filed suit for recovery of money basing on the pronote alleged to have been jointly executed by the deceased Mr. T. Rama Krishna and the 1st petitioner/D.1 obtained decree on 06.10.2015 against which the petitioners said to be preferred A.S. No. 113 of 2016 before this Court, which is pending. It is not the contention of the revision petitioners that they also obtained stay of execution of the decree in appeal filed by them before this Court. It is also not the specific contention of the revision petitioners that they have not filed any counter before executing court. Even otherwise, contents in the counter, which are discussed by the learned executing court in its order are similar to the contentions raised by the revision petitioners in the present revision petition. It appears that after obtaining decree by the respondent on 06.10.2015, he filed execution petition in the year 2015 itself, which is within two years from the date of decree and thereafter filed petition for execution of decree under Order XXI Rules 54, 64, 66 and 82 C.P.C. seeking attachment and sale of execution petition schedule property for realization of decretal amount. The executing Court at the first instance as execution petition is filed within two years ordered for attachment of execution petition schedule property of the petitioners and also ordered for notice said to be served and attachment effected on 10.12.2015. The executing Court at the first instance as execution petition is filed within two years ordered for attachment of execution petition schedule property of the petitioners and also ordered for notice said to be served and attachment effected on 10.12.2015. Then executing Court after considering the contentions raised by both sides held that execution petition schedule property is liable to be attached can be brought to sale for realization of execution petition debt. It is also observed by the executing Court that the petitioners/JDrs are admittedly legal heirs of deceased Mr. T. Rama Krishna one of the executants of suit pronote. It is also observed that revision petitioners/JDrs not denied their ownership of execution petition schedule property. Now also it is not the contention of the revision petitioners/JDrs that execution petition schedule property not belongs to them. The learned executing Court after following due procedure ordered for attachment and notice as per Order XXI Rule 54 C.P.C. and thereafter considered the contentions raised by both sides and passed orders. This Court did not find any irregularity or illegality in the orders passed by the executing Court, which needs no interference by this Court under Section 115 C.P.C. 11. In the result, Civil Revision Petition is dismissed. No order as to costs. Consequently, miscellaneous petitions pending if any., shall stand closed.