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2023 DIGILAW 1071 (AP)

M. Kasim Vali v. E. Guru Reddy

2023-07-13

V.R.K.KRUPA SAGAR

body2023
ORDER : Since both Civil Revision Petitions are between the same parties and orders impugned therein are from the same Court and as they are heard together, they are now to be disposed of by this common order. 2. O.S.No.9 of 2017 is a suit filed for recovery of Rs.28,43,534/- filed by plaintiff as against two defendants. The plaint was presented on 07.04.2017. Defendants made their appearance and they were to file their written statement on 18.09.2017. They failed to file the written statement and the proceedings went ex parte and the learned trial Court decreed the suit ex parte by its judgment dated 20.11.2017. Nine days thereafter it was on 29.11.2017 the defendants moved an application under Order IX Rule 13 C.P.C. requesting the learned trial Court to set aside the ex parte decree. Plaintiff was notified of it and he did not choose to file any counter. After enquiring into the matter, by an order dated 05.10.2018 the learned trial Court allowed that application in I.A.No.51 of 2018 in O.S.No.9 of 2017 and set aside the ex parte decree but subject to fulfillment of two conditions. It directed the defendants to deposit suit costs and also directed the defendants to deposit Rs.1,000/-to District Legal Services Authority. It granted time till 31.10.2018 for complying with the conditions. It stated that failure to fulfill the conditions would result in automatic dismissal of the application. It is in challenge to that, the winning parties/defendants preferred C.R.P.No.6397 of 2018 invoking the powers of this Court under Article 227 of the Constitution of India stating that learned trial Court ought not to have directed them to deposit the suit costs since within the prescribed time itself they moved the application and after keeping it pending for 10 months the learned trial Court passed such an order containing onerous conditions and therefore, the same shall be set aside. 3. As seen earlier, the learned trial Court decreed O.S.No.9 of 2017 on 20.11.2017. The winning plaintiff as decree holder filed E.P.No.1 of 2018 on 29.01.2018 and the said execution petition was filed under Order XXI Rule 37 read with Section 151 C.P.C. and the execution was levied as against defendant No.1/J.Dr. No.1 seeking for his arrest and detention in civil prison. Having received notices, J.Dr. The winning plaintiff as decree holder filed E.P.No.1 of 2018 on 29.01.2018 and the said execution petition was filed under Order XXI Rule 37 read with Section 151 C.P.C. and the execution was levied as against defendant No.1/J.Dr. No.1 seeking for his arrest and detention in civil prison. Having received notices, J.Dr. No.1/defendant No.1 made his appearance and filed a counter wherein he informed the executing Court that his application for setting aside ex parte decree is pending and without a decision in it proceeding further with execution is incorrect and therefore, sought for dismissal of the execution petition. It is then the learned executing Court passed the impugned order on 04.10.2018. The order is extracted here : “PW.1 filed chief affidavit and called present. PW.1 is a decree holder. Decree holder filed E.P. U/O.21 R.37 CPC seeking arrest of J.Dr.No.1 for recovery of amount in pursuance of decree in O.S.9/17 dated 20.11.17 on the file of II Addl. District Judge, Kurnool at Adoni. J.Dr. No.1 filed a counter, inter alia contended that the suit filed by the decree holder decreed ex parte on 20.11.17 and the J.Dr. filed a petition to set aside the decree and same is pending. It is further contended that the J.Dr has got sufficient ground to succeed in the suit. Having carefully gone through the contents of J.Dr. No.1 shows there is no grounds to challenge the EP. On the other hand, the grounds mentioned in the counter relating to suit transactions. The present petition is execution petition and the time sought by J.Dr. counsel is refused. Accordingly, issue arrest warrant against J.Dr. No.1 on payment of process. Call on 30.11.2018.” 4. It is in challenge to that, judgment debtor No.1 preferred C.R.P.No.6277 of 2018 under Section 115 C.P.C. contending that the impugned order is invalid and against law as it failed to advert to economic condition of judgment debtor No.1 and as it failed to consider pendency of application to set aside the ex parte decree and as it failed to reach to conclusion based on any evidence. 5. Sri K.V. Raghuveer, learned counsel appearing for revision petitioners in both the cases submitted arguments. 6. Sri G. Ramachandhra Reddy, learned counsel appearing for respondent submitted arguments in support of the orders impugned in both the revisions. 7. 5. Sri K.V. Raghuveer, learned counsel appearing for revision petitioners in both the cases submitted arguments. 6. Sri G. Ramachandhra Reddy, learned counsel appearing for respondent submitted arguments in support of the orders impugned in both the revisions. 7. Having considered the material on record and having considered the submissions of learned counsel on both sides, it is to be stated that it is the Court of learned II Additional District Judge, Adoni where O.S.No.9 of 2017 was disposed of by way of an ex parte decree and it is before the same Court execution petition was filed seeking for arrest of judgment debtor No.1. The fact that a petition to set aside the ex parte decree is pending is brought to the notice of the learned II Additional District Judge during the course of enquiry in the execution petition. Since it is before the same Court such an application is pending, it is normally expected that the Court would restrain itself from proceeding with execution of the decree and would first consider the application filed for setting aside the ex parte decree. Instead of doing it, the learned II Additional District Judge went ahead with execution. In the opinion of this Court taking up proceedings in that manner is impropriety on part of the Court. In the execution, decree holder was seeking for arrest and detention of judgment debtor No.1. Among several principles one important principle that is to be borne in mind is what is provided by Section 51 of Code of Civil Procedure. It mandates that the executing Court has got a duty to see whether judgment debtor No.1 has means to pay the amount of decree or some substantial part thereof and whether he was refusing or neglecting to pay the said amounts. The impugned order passed by the executing Court was already extracted in the earlier paragraphs of this order. It is at once clear that the said order does not have any reflection on the principles referred above and any relevant findings on facts relevant for those principles of law. It failed to conduct any means enquiry. It mentions that chief examination affidavit of PW.1/D.Hr. was filed. It does not even show whether the witness was tendered for cross-examination or not. It failed to conduct any means enquiry. It mentions that chief examination affidavit of PW.1/D.Hr. was filed. It does not even show whether the witness was tendered for cross-examination or not. It simply brushed aside the contention of judgment debtor No.1 that his application for setting aside ex parte decree stating that the same is no ground to answer for arrest and detention prayer made by the decree holder. Thus, the impugned order dated 04.10.2018 in E.P.No.1 of 2018 in O.S.No.9 of 2017 is against law and cannot be sustained. In fact learned counsel for respondent/plaintiff very fairly concedes the illegality involved in the impugned order of the learned executing Court. Therefore, C.R.P.No.6277 of 2018 has to be allowed. 8. Coming to C.R.P.No.6397 of 2018, the impugned order granted relief to the revision petitioners. The only contention raised is that it ought not to have directed them to deposit suit costs. Learned counsel for revision petitioners cited V.K. Industries v. M.P. Electricity Board, Rampur, Jabalpur, (2002) 3 SCC 159 . In that case, their Lordships have held that while restoring a case, the Court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security. Their Lordships have laid down the ratio stating that whichever condition is imposed the condition should be reasonable and it shall not be harsh or excessive. 9. Learned counsel for respondent cited V. Suresh Reddy v. D. Venkateswara Reddy, 2023 (1) ALD 310 (AP). While dealing with a similar matter, a learned Single Judge of this Court, while referring to G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54 and Vijay Kumar Madan v. R.N. Gupta Technical Education Society, (2002) 5 SCC 30 , reiterated the same principles that are laid down in the earlier referred rulings of the Hon’ble Supreme Court of India. 10. Thus, the law as enunciated by the Courts is clear that while setting aside ex parte decree a condition could be imposed and such condition should not be harsh or excessive. The Courts have been holding that what is harsh and excessive is always depending on the totality of facts and circumstances and the nature of the litigation that is there. In the case at hand, it was a suit for recovery of a large amount of money of Rs.28,43,534/-. The Courts have been holding that what is harsh and excessive is always depending on the totality of facts and circumstances and the nature of the litigation that is there. In the case at hand, it was a suit for recovery of a large amount of money of Rs.28,43,534/-. Having found a justified reason for setting aside the ex parte decree, the learned trial Court set aside the ex parte decree. Since Order IX Rule 13 C.P.C. empowers the Court to set aside ex parte decree upon such terms as to costs, the learned trial Court directed the defendants to deposit suit costs. Be it noted, it did not direct the defendants to deposit any part of the decretal amount. Thus, the most minimum was granted by the learned trial Court. Looking at the nature of the litigation that is available between parties, order of the trial Court in directing the defendants to deposit suit costs appears quite normal and at any rate, it cannot be said that it is a harsh or onerous condition. Therefore, there is no substance in this revision and hence, C.R.P.No.6397 of 2018 has to be dismissed. 11. In the result, C.R.P.No.6277 of 2018 is allowed. The impugned order dated 04.10.2018 in E.P.No.1 of 2018 in O.S.No.9 of 2017 on the file of learned II Additional District Judge, Adoni is set aside. C.R.P.No.6397 of 2018 is dismissed. Revision petitioners are granted time till 31.08.2023 to comply with the deposits that were ordered by the learned II Additional District Judge, Adoni by his order dated 05.10.2018 in I.A.No.51 of 2018 in O.S.No.9 of 2017. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.