Veduruparthi Moses Narayana v. Shriram City Union Finance Ltd. , Eluru, W. G. District
2024-10-19
NYAPATHY VIJAY, RAVI NATH TILHARI
body2024
DigiLaw.ai
JUDGMENT : RAVI NATH TILHARI, J : Heard Sri Jakkamsettu Saraschandra Babu, learned Counsel for the petitioner/judgment debtor (in short J.Dr.) and Sri Maheswara Rao Kuncheam, learned Counsel for respondent No.1/decree holder (in short D.Hr.). 2. The D.Hr.-Shriram City Union Finance Limited filed ARC No.822 of 2017 in which the Arbitral Tribunal passed the award dated 25.09.2018 for an amount of Rs.4,70,323/- with subsequent interest against the petitioner and present respondent Nos.2 to 4/J.Dr.Nos.2 to 4. The award was not satisfied. The D.Hr. filed EP No.12 of 2022 in the Court of the X Additional District Judge, Narasapur, in which notice was issued to the J.Drs. In execution petition request was made to issue warrant of arrest against J.Dr.Nos.1 & 2 under Order 21 Rules 22, 37 & 38 of CPC. The J.Dr.No.1 filed counter-affidavit denying the averments of decree holder. The D.Hr., as also the J.Dr.No.1 adduced the evidence. On behalf of D.Hr., PW1 was examined and on behalf of J.Dr.No.1, RWs.1 and 2 were examined. On consideration of evidence on record, the learned Execution Court recorded the finding that the J.Dr.No.1 has sufficient means to discharge the EP amount. J.Dr.2 remained ex parte. The execution petition was allowed directing to issue warrant against J.Dr.No.1/the petitioner herein by sending to civil prison for detention to 3 months. Challenging the said order, the present CRP under Section 115 of Code of Civil Procedure (in short 'CPC') has been filed. 3. Learned Counsel for the petitioner submits that the petitioner has no means to satisfy the decree or to comply the terms of interim order. He submits that the order of the Execution Court is not correct, as the burden was on the D.Hr. to establish that the J.Dr., has means to pay and not on the J.Dr. 4. Learned Counsel for the respondent supports the impugned order by submitting that the J.Dr., has the means to pay and there is no illegality in the finding recorded by the learned Execution Court. 5. We have considered the aforesaid submissions and perused the material on record. 6. On consideration of the evidence, the Execution Court came to the conclusion that J.Dr.No.1 has sufficient means to discharge the EP amount. The finding is of fact and on consideration of the evidence on record, including the evidence led by the J.Dr.
5. We have considered the aforesaid submissions and perused the material on record. 6. On consideration of the evidence, the Execution Court came to the conclusion that J.Dr.No.1 has sufficient means to discharge the EP amount. The finding is of fact and on consideration of the evidence on record, including the evidence led by the J.Dr. It is settled in law that once the parties led evidence, the burden of proof goes in the background. The entire evidence on record deserves consideration, which the learned Execution Court considered. 7. In the exercise of revision jurisdiction, under Section 115 CPC, it is not open to interfere with such a finding on fact. The Execution Court did not act without jurisdiction nor committed any jurisdictional error in the exercise of its jurisdiction. 8. In Deb Ratan Biswas v. Most. Anand Moyi Devi, 2011 SCC OnLine SC 633, the Hon'ble Apex Court held that it is well settled that in civil revision the jurisdiction of the High Court is limited, and it can only go into the questions of jurisdiction. 9. In Kasthuri Radhakrishnan v. M. Chinniyan, (2016) 3 SCC 296 , on the point of exercise of revisional jurisdiction of the High Court while hearing the revision petition, the Hon'ble Apex Court observed and held as under : "27. So far as the issue pertaining to exercise of revisional jurisdiction of the High Court while hearing revision petition arising out of eviction matter is concerned, it remains no more res integra and stands settled by the Constitution Bench of this Court in Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78 . Sri R.M. Lodha, the learned Chief Justice speaking for the Bench held in Para 43 thus : "43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/authority below is according to law and does not suffer from any error of law.
The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." 10. In Varadarajan v. Kanakavalli, (2020) 11 SCC 598 , the Hon'ble Apex Court held that an order passed by a subordinate Court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. 11. Para 15 of Varadarajan's case (supra), reads as under : "15.
The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. 11. Para 15 of Varadarajan's case (supra), reads as under : "15. In addition to the nature of proceedings to implead the legal representative to execute the decree, we find that none of the tests laid down in Section 115 of the Code were satisfied by the High Court so as to set aside the order passed by the Executing Court. The High Court in exercise of revision jurisdiction has interfered with the order passed by the Executing Court as if it was acting as the First Court of appeal. An order passed by a subordinate Court can be interfered with only if it exercises its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity. The mere fact that the High Court had a different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court. Consequently, the order passed by the High Court is set aside and that of the Executing Court is restored. The appeal is allowed." 12. In this CRP by interim order dated 01.12.2023, the stay of all further proceedings pursuant to the order dated 07.11.2023, was directed, subject to the petitioner depositing 1/3rd of the EP amount within a period of 8 weeks from that date, clearly providing further that in the event of default, the interim order shall automatically stand vacated. Any application for extension of time was also not filed. The petitioner did not comply with the terms of the interim order dated 01.12.2023, and did not avail the opportunity so as to avoid the implementation of the impugned order. 13. We do not find any illegality in the order impugned. No case is made out for interference under Section 115 CPC. 14. The civil revision petition is dismissed. 15. No order as to costs. 16. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.