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2024 DIGILAW 795 (TS)

M NAGESHWAR RAO died per LRS v. M. A. Samad

2024-09-21

K.SURENDER

body2024
ORDER : K.SURENDER, J. 1. This Civil Revision Petition is filed by the decree holder (petitioner herein) against orders dated 10.12.2015 in E.A.No.49 of 2015 in E.P.No.38 of 2013 whereby the learned trial Judge refused the prayer of the decree holder to issue account payee cheque for Rs.12,03,518/- out of the amount of Rs.14,93,980/- deposited as security in E.A.No.119 of 2014. 2. E.A.No.119 of 2014 was filed by the judgment debtor (respondent herein) to deposit the entire decretal amount before the trial Court towards security and to stall the proceedings till the appeal is disposed off in accordance with the provisions of Order 41 Rule 6(2) of CPC. 3. Briefly, the back ground of the case is that the suit was filed by the plaintiff-M.Nageshwar Rao for specific performance of agreement of sale directing the defendant in the suit to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property or in the alternative to return the advance amount of Rs.4,75,000/- along with interest at the rate of 18% per annum which works out to Rs.7,18,628/- vide O.S.No.1634 of 2006. The said suit for specific performance was dismissed, however, alternative relief was granted by decreeing the suit to refund an amount of Rs.7,18,628/- vide judgment dated 25.08.2010. 4. The judgment debtor/defendant filed appeal vide CCCA No.22 of 2011 before this Court. CCCA.M.P.No.44 of 2011 was filed whereby this Court granted interim stay of all further proceedings including execution of judgment. CCCAMP No.304 of 2011 was again filed by the decree-holder to vacate the interim order passed in CCCA.M.P.No.44 of 2011. This Court by order dated 28.06.2011 made the interim stay absolute subject to the condition of judgment debtor depositing half of the decreetal amount within a period of eight weeks. On such deposit, the plaintiff/decree holder was permitted to withdraw without furnishing any security. Further, this Court also held that interim stay would stand vacated and it is open for the decree-holder to proceed with the execution of the decree. 5. E.P.No.41 of 2011 was filed seeking attachment of the suit schedule property and to conduct sale and realize the EP amount. Learned Judge at Zaheerabad, to which the case was transferred for execution, conducted enquiry and passed orders issuing attachment warrant of the execution of petition schedule property. 6. 5. E.P.No.41 of 2011 was filed seeking attachment of the suit schedule property and to conduct sale and realize the EP amount. Learned Judge at Zaheerabad, to which the case was transferred for execution, conducted enquiry and passed orders issuing attachment warrant of the execution of petition schedule property. 6. In execution of the warrant, proclamation was made and sale notice was issued in respect of the property on 28.04.2014. Thereafter, the judgment debtor deposited an amount of Rs.14,93,980/- by way of two demand drafts in the Court below and also informed regarding pendency of the appeal vide CCCA No.22 of 2011. Pursuant to the deposit of the amount, sale was stopped. E.A.No.119 of 2014 was filed to permit the judgment debtor to deposit the entire decreetal amount as security in accordance with the order 41 Rule 6(2) of CPC. E.P.No.38 of 2013 which was filed, was closed since the judgment debtor deposited more than the E.P amount. 7. Questioning the orders passed in E.P.No.38 of 2013 and E.A.No.119 of 2014, CRP No.4664 of 2015 and CRP No.4649 of 2015 were filed before this Court. This Court by order dated 06.11.2015 while disposing of the petitions at the stage of admission, directed the Court below to consider objections by the judgment debtor in the cheque petition and decide the cheque petition in accordance with law without being influenced by observations made in the order. 8. Pursuant to the orders passed in CRP Nos.4664 and 4649 of 2015, I.A.No.49 of 2015 was filed in E.P.No.38 of 2013. Learned judge dismissed the petition of the decree holder finding that since the amount was deposited as security, the decree-holder is not entitled to withdraw the amount by presenting the cheque petition until appeal is disposed off. 9. Learned counsel appearing for the revision petitioner would submit that the petition filed under Rule 230 and 232 of Civil Rules of Practice ought to have been ordered and ordered issuance of cheques to the decree-holder. Though this Court in CCCA No.22 of 2011 had asked to deposit half of the decreetal amount, failing which the stay granted earlier would stand vacated, however, no such deposit was made. Accordingly, there is no stay subsisting in CCCA No.22 of 2011. Further, the learned Judge vide impugned order did not refer to the fact that there was no stay in CCCA No.22 of 2011. Accordingly, there is no stay subsisting in CCCA No.22 of 2011. Further, the learned Judge vide impugned order did not refer to the fact that there was no stay in CCCA No.22 of 2011. Lastly, counsel submitted that having obtained decree and thereafter going through the process of auction etc., till date, the decree holder is not in a position to get back his amount. 10. Learned counsel relied on the following judgments: i) Embassy Hotels (Private) Limited v. Benjami n (MANU/TN/0443/2008) ii) Bhagwan Singh and others v. Puran Chan d (MANU/PH/0633/2005) 11. On the other hand, learned counsel appearing for the judgment debtor would submit that under Order 41 Rule 6, the amount has been deposited and according to the said provision, stay would be subsisting till disposal of the appeal. The amount cannot be paid to the decree-holder. He relied on the following judgments: i) P.Satyanarayana v. G.Rama Subbulu (ALT Vol.XVI 1965-II (CRP No.1115 of 1963, dated 26.08.1965). ii) Krishan Kumar v. State Bank of Patiala and other s (AIR 2006 PH 22), wherein it is held as follows: “8. Even in a situation where the stay has been declined by the appellant Court under Rule 5 of the Order 41 of the Code, the executing Court is bound in law to stay the sale. The only discretion the execution court enjoys is to impose such conditions, or insist upon the deposit of the entire decretal amount, as may be deemed appropriate. 9. A perusal of the impugned order clearly shows that the executing Court was clearly oblivious of the provisions of Rule 6(2) of Order 41 of the Code. It has completely lost sight of the fact that the aforesaid provision is mandatory in nature.” iii) P.S.L.Ramanathan Chettiar and others v . RM.P.RM.Ramanathan Chettiar (1968 AIR 1047). 12. For the sake of convenience, Order 41 Rule 6(2) of CPC is extracted as under: “6. Security in case of order for execution of decre e appeale d from . (1) …… (2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment- debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.” 13. This Court, by order dated 06.11.2015 in CRP Nos.4664 & 4649 of 2015, observed as follows: “I have perused the material papers including the impugned order dated 19.02.2015 both in E.P and E.A. No E.P is pending as on today and sale conducted was already set aside. Therefore, I feel by directing the court below to consider the objections raised by J.Dr in the cheque petition and decide cheque petition in accordance with law, these revisions can be disposed of. With the above observation, these two revisions are disposed of at the admission stage, directing the trial Court to dispose of cheque petition on merits by taking into consideration all the objections without being influenced by any observations made in this order.” 14. As seen from the impugned order, learned Judge found that the decree-holder was not entitled to withdraw the amount until the appeal is disposed off. A reading of the observations of this Court, it is clear that the Court was directed to consider the objections in the cheque petition and decide the cheque petition accordingly. Order 41 Rule 6(2) of CPC confines to staying of ‘sale’ of the property and does not restrict entertaining the cheque petition or refusal or denying payment of the amount in the cheque petition before the Executing Court from the amount deposited towards security. Needless to say there cannot be sale of the immovable property since deposit is already made as security. 15. The fact remains that directions of this Court in CCCA No.22 of 2011 to deposit half of the decreetal amount and pursuant to such deposit, decree-holder being entitled to withdraw said amount without security, admittedly, the direction was not followed. There is no stay of the decree passed on 25.08.2010, however, the stay is confined to the sale of immovable property in the execution proceedings pending appeal, in accordance with Order 41 Rule 6(2) of CPC. 16. Keeping in view the present circumstances, this Court finds that the impugned order is incorrect and accordingly, set aside. The trial Court is directed to issue account payee cheque for Rs.12,03,518/- in favour of the legal heirs of the petitioner herein, who were brought on record by this Court vide order dated 17.12.2021 in I.A.No.3 of 2021. Needless to say, this order will not preclude the decree-holders from filing Execution Petition seeking any amount i.e., due over and above i.e., Rs.12,03,518/-. Needless to say, this order will not preclude the decree-holders from filing Execution Petition seeking any amount i.e., due over and above i.e., Rs.12,03,518/-. Under no circumstances, the immovable property mentioned in the schedule of warrant of sale under Order 21 Rule 66 in E.P.No.38/2013 pending disposal of CCCA No.22/2011 be subjected to sale. 17. Accordingly, Civil Revision Petition is allowed. There shall be no order as to costs. Consequently, miscellaneous petitions, if any, shall stand disposed off.