Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 1363 (AP)

Director General of Post Offices v. Penaka Bujji Reddy

2024-09-26

B.S.BHANUMATHI

body2024
ORDER : 1. This revision petition, under Section 115 CPC by the judgment debtors, is directed against the order, dated 21.09.2023, passed in E.P. No. 62 of 2023 in O.S. No. 272 of 2004 on the file of the Court of I Additional Senior Civil Judge, Nellore, filed by the DHr under Order XXI Rule 11 and Section 39 CPC for realization of the EP amount. 2. Heard Sri Bethapalli Suryanarayana, learned Central Government counsel appearing for the petitioners/JDrs and Ms. Y.L. Sivakalpana Reddy, learned counsel for the respondent/DHr. 3. The facts leading to filing of this revision, briefly stated, are as follows: (a) The suit in O.S. No. 272 of 2004 was filed for eviction and for recovery of rents. The trial Court decreed the suit and ordered eviction by enhancing the lease amount from Rs.5,000/- to Rs.10,000/-. Against the decree & judgment, the judgment debtors preferred appeal before the Court of V Additional District Judge, Nellore, in A.S. No. 98 of 2008. The appellate Court modified the order impugned and passed preliminary decree on 18.01.2011 directing the decree holder to file separate petition for mesne profits. Accordingly, the decree holder filed I.A. No. 9 of 2014 for realization of arrears of rent and for mesne profits. The said petition was allowed on 07.12.2022 with a direction to the respondents to pay rental amount of Rs.10,000/- per month from 16.11.2001 to 12.09.2011 by enhancing 15% rent on the existing rent for every two years. (b) The judgment debtors having sufficient means to pay the amount due under the decree passed against them are evading paying the same. Thus, the decree holder prayed to order attachment of the schedule mentioned movable properties of the judgment debtor no. 3 by issuing notice under Order XXI Rule 43 CPC. 4. The respondents/JDrs filed written submissions stating that the respondent herein filed suit, vide O.S. No. 272 of 2004 on the file of the Court of II Additional Senior Civil Judge, Nellore, seeking the following reliefs: (a) The relief for eviction of the defendants from the plaint schedule property and delivery of its vacant possession to the plaintiff. (b) The relief of recovery of arrears of rent from 19.12.2001 to 30.06.2024 for an amount of Rs.2,10,000/- (c) The relief of recovery of damages for an amount of Rs.10,000/- for the unauthorized occupation of the premises. (b) The relief of recovery of arrears of rent from 19.12.2001 to 30.06.2024 for an amount of Rs.2,10,000/- (c) The relief of recovery of damages for an amount of Rs.10,000/- for the unauthorized occupation of the premises. The suit was decreed on 31.03.2008 in part directing the defendants to vacate the suit schedule premises within three (3) months from the date of judgment and further holding that the plaintiff is entitled to recover an amount of Rs.2,10,000/- from the defendants towards arrears of rent from 19.12.2001 to 30.06.2024 and the defendant shall continue to pay the monthly rent at the rate of Rs.10,000/- per month till delivery of vacant possession of the schedule premises to the plaintiff and that the defendants are at liberty to deduct monthly rent, if any, paid to the plaintiff from enhanced monthly rent of Rs.10,000/- and the relief of damages is dismissed without costs and that having been aggrieved by the decree & judgment, the defendants preferred appeal, vide A.S. No. 98 2008 on the file of the Court of V Additional District Judge, Nellore. 5. The appellate Court passed orders, dated 18.01.2011, directing the defendants to vacate the suit schedule premises and handover vacant possession to the respondent within three (3) months and the order of the lower court was modified setting aside the relief of recovery of an amount of Rs.2,10,000/-. It also set aside the direction to pay monthly rent at the rate of Rs.10,000/- per month till delivery of vacant possession of the suit schedule premises. Further, a relief of passing of preliminary decree regarding payment of arrears of rent and future rents and also directed to conduct inquiry as to the mesne profits payable from 16.11.2001 until the delivery of vacant possession to the plaintiff. 6. The plaintiff/decree holder filed interlocutory application, viz. I.A. No. 9 of 2014 in O.S. No. 272 of 2004 on 10.10.2014 seeking a relief to determine the mesne profits in terms of the preliminary decree, dated 18.01.2011,by appointing an advocate commissioner to conduct an inquiry in relation to the schedule property and file report regarding mesne profits from 16.11.2001 till the date of handing over possession, i.e., till 12.09.2011. 7. 7. The I Additional Senior Civil Judge, Nellore, passed the final decree, dated 07.12.2022, directing the respondents to pay an amount of Rs.10,000/- per month from 16.11.2001 to 12.09.2001 by enhancing 15% rent on existing rent on every two years and also granted a relief that the petitioner is entitled to 18% interest on arrears of rent and defaulted in payment of rents. 8. The petitioners neither challenged the decree and judgment in A.S. No. 98 of 2008 nor filed any appeal against the orders in I.A. Nos.9 of 2014 in O.S. No. 272 of 2004. Hence, the orders in the interlocutory applications have attained finality. 9. The respondent/DHr filed E.P. No. 62 of 2023 in I.A. No. 9 of 2014 in O.S. No. 272 of 2004 seeking to attach movable properties of JDr No. 3 by issuing notice under Order XXI Rule 43 CPC and thereafter, proclaim and sell the EP schedule property under Order XXI Rule 64 CPC for realization of the EP amount of Rs.48,80,103/- with subsequent interest on Rs.15,80,864/- at the rate of 18% per annum from 14.03.2023 till the date of realization. The court below issued rule 43 notice to the JDr and the matter was called on 04.07.2023. But, the JDr was called absent. The Court below issued rule 43 CPC attachment warrant on payment of process to the JDrs/petitioners herein. 10. The petitioners filed E.A. No. 155 of 2023 in E.P. No. 62 of 2023 praying the court to set aside the order passed on 04.07.2023. The Court allowed the petition, vide docket order, dated 29.08.2023, with a condition that the petitioner has to deposit 50% of the claim amount in civil court on or before 21.09.2023 failing which the petition stands dismissed. 11. The docket order, dated 29.08.2023 reads as hereunder: “Counter of respondent filed. Heard both sides. On considered both sides pleadings and submissions, though petitioner has no merits in his pleadings, this Court is inclined to allow the petition with terms. In the result, petition is allowed with a condition that petitioner has to deposit the 50% claim amount in civil Court Deposit on or before 21.09.2023, failing which petition stands dismissed.” 12. The plaintiffs filed E.A. No. 161 of 2023 seeking the relief to grant police aid to execute the attachment warrant ordered by the Court under Order XXI Rule 43 CPC. The plaintiffs filed E.A. No. 161 of 2023 seeking the relief to grant police aid to execute the attachment warrant ordered by the Court under Order XXI Rule 43 CPC. As the petitioners failed to comply with the conditional order, dated 29.08.2023, the Court below, vide docket order, dated 21.09.2023, dismissed the execution application in E.A. No. 155 of 2023 and allowed the police aid petition in E.A. No. 161 of 2023 and posted the matter to issue notice warrant as per Rule 43 on payment of process by 06.11.2023. The defendants did not challenge the order, dated 21.09.2023, and thus, it attained finality. 13. Having been aggrieved by the orders in E.P. No. 62 of 2023, the petitioner approached this Court by filing this revision. This Court, granted interim stay, dated 06.11.2023, as follows: “Considering the submissions made by the learned counsel for the petitioners, there shall be interim stay as prayed for, subject to the condition of petitioners depositing 50% of the EP amount including the costs and interest, within a period of four (04) weeks.” 14. The revision petitioners/JDrs paid an amount of Rs.24,40,052/- in compliance with the directions of this Court. The respondent contended that the revision was filed with an intent to delay the execution, and that the respondents filed the suit in the year 2004 and secured the decree in the year 2008, and the appeal was partly allowed on 18.01.2011 and the petition for mesne profits was filed in the year 2014 and the same was allowed on 07.12.2022, and the execution petition was filed in the year 2023 and secured attachment order and police aid, but due to continuation of the stay orders in the revision, half of the decretal amount was not paid. Hence, the respondent/DHr stated that the revision petition is liable to be dismissed. 15. As the decree remained executable pursuant to order of dismissal of E.A. No. 155 of 2023, which is not challenged, there is no illegality or irregularity committed by the execution Court in ordering warrant of attachment. Similarly, without challenging the order passed in E.A. No. 161 of 2023, there is no ground to oppose grant of police aid for execution of the warrant. There is no merit in the revision. 16. Similarly, without challenging the order passed in E.A. No. 161 of 2023, there is no ground to oppose grant of police aid for execution of the warrant. There is no merit in the revision. 16. It is pertinent to mention that in the written submissions, it is mentioned that due to continuation of the order of stay, the remaining half of the decretal amount was not paid by the petitioners. After disposal of this petition, since the interim order does not survive, it is open for the JDrs to make the payment of the balance amount. In view of payment of 50% of the EP amount in compliance with the directions of this Court in the interim order, the execution Court has to determine afresh the quantum of existing liability, for complete satisfaction of the decree. Thereafter, for the balance liability, if not discharged, a fresh warrant of attachment can be issued. 17. Accordingly, the civil revision petition is dismissed. 18. There shall be no order as to costs. 19. Miscellaneous Petitions pending, if any, shall stand closed.