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2022 DIGILAW 880 (AP)

Samanthapudi Srinivasa Naga Raju v. Kota Jayasree, Vja, Krishna

2022-09-14

BANDARU SYAMSUNDER

body2022
ORDER : I have heard both sides. 2. This Civil Revision Petition is filed by the petitioner/Judgment-debtor (J.Dr.) under Section 115 of Civil Procedure Code against the orders passed by the learned Senior Civil Judge, Addanki, in E.P.No.40 of 2014 in O.S.No.1007 of 2012 dated 10.02.2015, wherein and whereby the executing Court overruled the objection raised by the petitioner and ordered for attachment and sale of execution petition schedule property for realization of decretal amount by the respondent/Decree-holder (D.Hr.). 3. The case of the respondent/D.Hr. before executing Court is that he filed suit for recovery of money against the petitioner/J.Dr. on the file of the Court of III Additional Senior Civil Judge, Vijayawada, which suit decreed on 11.02.2013 for an amount of Rs.1,39,667/- with subsequent interest. The respondent/D.Hr. alleged that inspite of repeated demands, revision petitioner/J.Dr. not repaid the decretal amount and he is intentionally avoided to repay the same on one pretext or other and prays to attach and sale execution petition schedule property in Court auction by ordering proclamation under Order XXI Rule 64 and 66 CPC. 4. For which, the revision petitioner/J.Dr. filed counter before executing Court stating that himself and respondent are close friends and due to that he obtained hand loan of Rs.1,00,000/- from the respondent on 24.07.2009 and executed a promissory note. He alleged that at that time, respondent obtained his signatures in unfilled promissory note and also on Rs.100/- stamp paper and thereafter he called respondent at Kotak Mahendra Bank, Vijayawada and then he gave an amount of Rs.1,00,000/- and cheque for Rs.24,468/- to respondent/D.Hr. He submits that after that he shifted his family to Vizag in the month of May 2011 for his business purpose and since then he has been staying at Vizag, but recently came to know that execution petition has been filed and on his enquiry, he came to know about respondent obtaining ex parte decree on 11.02.2013 by filing the suit on the file of the Court of learned III Additional Senior Civil Judge, Vijayawada. The main contention of the revision petitioner/J.Dr. is that he indebted many amounts to respondent/D.Hr. and he is not in possession of execution petition schedule property, which is in possession of Valluri Sreeramulu and others, who is resident of Darsi village of Martur Mandal. He further submits that he is not in possession of execution petition schedule property since 15 years, but respondent/D.Hr. is that he indebted many amounts to respondent/D.Hr. and he is not in possession of execution petition schedule property, which is in possession of Valluri Sreeramulu and others, who is resident of Darsi village of Martur Mandal. He further submits that he is not in possession of execution petition schedule property since 15 years, but respondent/D.Hr. filed execution petition for wrongful gain. The revision petitioner himself has stated that he has not having any other property in Vijayawada except the schedule property and he also filed petition to set aside ex parte decree along with petition under Section 5 of Limitation Act to condone the delay in filing the petition. He prays to dismiss the execution petition. 5. The learned executing Court after hearing both sides allowed the execution petition by overruling the objection raised by the revision petitioner/J.Dr. 6. Aggrieved by the orders passed by executing Court ordering for attachment and sale of E.P. schedule property, revision petitioner/J.Dr. has filed present revision petition stating that the order of the Court below is erroneous, contrary to law and weight of evidence. He submits that the executing Court ordered for attachment and sale of E.P. schedule property though he pleaded in his counter that he filed petition to set aside the ex parte decree, which is pending and he is now taking steps to proceed with enquiry in the petitions filed by him before the trial Court. The learned counsel for the revision petitioner mainly contended that petitioner is not in possession and enjoyment of E.P. schedule property since 15 years, due to that the said property cannot be sold in Court auction. He prays to allow the revision petition. 7. Learned counsel for the respondent/D.Hr. mainly contended that petitioner never pleaded in his counter that E.P. schedule property does not belong to him and he only pleaded that he is not in possession of the said property, which plea is not tenable. He prays to allow the revision petition. 7. Learned counsel for the respondent/D.Hr. mainly contended that petitioner never pleaded in his counter that E.P. schedule property does not belong to him and he only pleaded that he is not in possession of the said property, which plea is not tenable. He submits that petition filed by the petitioner to condone the delay of 645 days to set aside the ex parte decree in I.A.No.188 of 2015 in O.S.No.1007 of 2012 on the file of the Court of learned III Additional Senior Civil Judge, Vijayawada, already dismissed for default on 03.08.2017 and thereafter petitioner has not taken any steps for restoration of the said petition, due to that contention of revision petitioner that he filed petition to set aside the ex parte decree with a delay condonation petition cannot be considered. He prays to dismiss the revision petition. 8. Now, the issue that emerges for consideration by this Court is: "Whether the orders under challenge are sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of Constitution of India?" 9. POINT: It is not in dispute that respondent/D.Hr. filed suit for recovery of his promissory note debt against the revision petitioner in O.S.No.1007 of 2012 on the file of learned III Additional Senior Civil Judge Court, at Vijayawada and obtained decree on 11.02.2013 for Rs.1,39,667/- with future interest at 6% per annum on Rs.1,00,000/- from the date of filing of the suit till the date of realisation. Thereafter, respondent/D.Hr. got the decree transferred to Senior Civil Judge Court, Addanki, on the ground that revision petitioner is having immovable properties within the jurisdiction of that Court and sought for attachment and sale of immovable properties of petitioner/J.Dr. for realisation of decretal amount. For which, the contention of the revision petitioner is that immovable property shown in the execution petition is not in his possession since 15 years as it is in possession of one Mr.Valluri Sriramulu and others. It is not the contention of the revision petitioner that immovable property shown in execution petition is not belong to him and he has not explained in his counter under what capacity the said Mr.Valluri Sriramulu and others are in possession and enjoyment of execution petition schedule property. Therefore, the first ground on which revision petitioner is opposing the execution petition filed by the respondent/D.Hr. is not tenable. Therefore, the first ground on which revision petitioner is opposing the execution petition filed by the respondent/D.Hr. is not tenable. Another ground on which revision petitioner is opposing execution petition is that he filed petition to set aside the ex parte decree passed against him along with petition to condone the delay, which is pending. Learned counsel for the respondent submitted that petition filed by the revision petitioner under Section 5 of Limitation Act in I.A.No.188 of 2015 in O.S.No.1007 of 2012 on the file of the Court of III Additional Senior Civil Judge, Vijayawada was already dismissed for default on 03.08.2017. For which, the learned counsel for revision petitioner not filed any documents either before executing Court or before this Court to show that still those petitions are pending. Even otherwise, any petition is pending for setting aside the ex parte decree, unless stay of execution is obtained, the petitioner cannot stall the execution of the money decree on the ground that he filed petition to set aside ex parte decree. It is also not the contention of the revision petitioner that any third party or persons who are said to be in possession of execution petition schedule property have filed any claim petition before executing Court. Therefore, grounds on which revision petitioner is challenging the impugned order are not tenable. This Court did not find any irregularity or illegality in the impugned order passed by the learned executing Court ordering attachment and sale of E.P. Schedule property warrants interference of this Court under Section 115 of Civil Procedure Code. 10. In the result, the Civil Revision Petition is dismissed. No order as to costs. Consequently, miscellaneous petitions pending if any, shall stand closed.