Yadlapalli Hanumantha Rao v. Palasala Nageswara Rao
2024-01-24
K.SREENIVASA REDDY
body2024
DigiLaw.ai
ORDER : (K. Sreenivasa Reddy, J.) Since the issue involved in both the Civil Revision Petitions is one and the same, they are being disposed of by this common order. 2. The present Civil Revision Petitions have been filed against the common order dated 24.03.2022 passed in IA Nos.801 and 802 of 2019 in OS No.155 of 2018 by the learned Senior Civil Judge, Avanigadda. 3. The petitioner herein is the plaintiff and respondent herein is the defendant in the above suit. For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the suit. 4. The plaintiff filed the suit in OS No.155 of 2018 on the file of the learned Senior Civil Judge, Avanigadda against the defendant for recovery of a sum of Rs.9,10,800/- due under three suit promissory notes with subsequent interest at 12% p.a., from the date of suit till realization. Since the defendant was not present, he was set ex parte and an ex parte decree was passed in the said suit on 23.04.2019. Thereafter, the present IAs were filed by the defendant seeking to set aside the said ex parte decree by condoning the delay of 120 days in filing the set aside petition. 5. The defendant stated in his affidavit filed in support of the petition that he did not receive any notice or summons in the suit and the plaintiff gave wrong door number purposefully, managed the postal authorities and obtained ex parte decree behind his back in order to harass him. He further stated that on receipt of notice in EP proceedings, he came to know about the suit proceedings. 6. A counter came to be filed in the IAs stating that the defendant got ample knowledge about the suit proceedings and on every occasion, the plaintiff informed the defendant over phone and requested for discharge of the debt, but the defendant intentionally avoided the same. As the defendant evaded to receive the suit summons, the Court ordered substituted service and accordingly the same was published in Andhra Prabha Krishna district edition. The suit underwent several adjournments and finally decreed on 23.04.2019.
As the defendant evaded to receive the suit summons, the Court ordered substituted service and accordingly the same was published in Andhra Prabha Krishna district edition. The suit underwent several adjournments and finally decreed on 23.04.2019. It is further stated that pursuant to passing of decree, the plaintiff filed EP No.125 of 2019 and when the said EP reached the stage of sale of immovable property of the defendant, he filed the present IAs only with a view to defeat the entire EP proceedings. 7. By a common order dated 24.03.2022, the learned Senior Civil Judge, Avanigadda, allowed the said IAs subject to payment of costs of Rs.500/-. Aggrieved by the same, the present CRPs have been filed. 8. Heard both sides. 9. Learned counsel appearing on behalf of the petitioner herein/plaintiff submits that no reasons are given by the learned Senior Civil Judge for allowing the IAs in order to condone the inordinate delay of 120 days in filing the set aside petition and the learned Judge failed to appreciate the law in proper perspective. 10. Admittedly, the suit underwent several adjournments from time to time and later an ex parte decree was passed on 23.04.2019. As suit summons was not served on the defendant, the plaintiff has taken steps for publishing the same in a daily Newspaper i.e., "Andhra Prabha" Krishna district edition. It goes without saying that the plaintiff would have informed the defendant with regard to filing of suit and for payment of money to him. Despite the same, the defendant has kept quiet and slept over for years and when the EP proceedings were initiated and when it reached the stage of sale of his immovable property, he filed the present IAs with a delay of 120 days without explaining any reasons for such delay, except stating that no notice or suit summons were served on him. Article 123 of the Limitation Act specifies that time begins to run from the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. 11. Learned counsel for the petitioner herein/plaintiff has relied upon a decision reported in V.K.Industries v. M.P. Electricity Board, Rampur, Jabalpur (Appeal (Civil) No.1778 of 2002, dated 01.03.2022), wherein the Hon'ble Supreme Court observed thus.
11. Learned counsel for the petitioner herein/plaintiff has relied upon a decision reported in V.K.Industries v. M.P. Electricity Board, Rampur, Jabalpur (Appeal (Civil) No.1778 of 2002, dated 01.03.2022), wherein the Hon'ble Supreme Court observed thus. "This appeal is by the defendants in the suit filed for recovery of Rs.3,84,455.44 with future interest @ 24% per annum from the date of filing of the suit till realization of the amount. Suit summons were not personally served on the defendants. However, the trial court, on the basis of newspaper publication, held that service of summons on defendants was sufficient. In the absence of the defendants, the suit was decreed ex parte as prayed for by the plaintiff. On coming to know the ex parte decree, passed against them, the defendants filed a petition under Order IX Rule 13 of the Code of Civil Procedure. The trial court dismissed the said petition. Aggrieved by the same, the defendants filed Miscellaneous Appeal before the High Court. The High Court allowed the Miscellaneous Appeal and set aside the ex-parte decree subject to the terms (i) the defendants shall, within a period of two months, deposit a sum of Rs.2,00,000/- with the trial court, (ii) shall furnish bank guarantee for the remaining sum claimed in the suit within the said period of two months and (iii) the amount so deposited shall be liable to be disbursed in accordance with the final order that may be passed in the suit. It is to be noted that the plaintiff has not challenged the order setting aside ex parte decree. The only grievance of the appellants is that the terms, upon which ex parte decree is set aside, are onerous and not reasonable. On behalf of the respondents submission was made supporting the said terms as justified. Ordinarily, a money decree is not stayed unconditionally and the judgment-debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex parte decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution.
Ordinarily, a money decree is not stayed unconditionally and the judgment-debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex parte decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution. It is no doubt true that in 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 but such conditions should be reasonable and not harshly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits. On 29.10.2001, the learned counsel for the appellants stated that within two weeks, a sum of Rs.50,000/- shall be deposited in the trial court and notice was issued on that day. During the course of hearing the learned counsel informed that a sum of Rs.50,000/- is already deposited in the trial court. We are of the view that it would be just and appropriate to direct the appellants to deposit a further sum of Rs.50,000/- in the trial court within a period of four weeks from today. The terms to deposit Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim shall stand modified as indicated above. The impugned order shall remain undisturbed in all other respects. The appeal is disposed of accordingly. No costs." 12. Coming to the case on hand, the present IAs were filed at a belated stage with a delay of 120 days without explaining any reasons for such delay, except stating that no notice or summons was served on the defendant. In general, a money decree is not stayed unconditionally and the judgment debtor would be put on terms, on the ground that such conditions must be reasonable with regard to all relevant factors. 13.
In general, a money decree is not stayed unconditionally and the judgment debtor would be put on terms, on the ground that such conditions must be reasonable with regard to all relevant factors. 13. In view of the aforesaid reasons and while relying upon the above said decision, this Court is of the opinion that there are no grounds to interfere with the impugned orders, however ends of justice would be met if the defendant/judgment debtor is directed to deposit an amount of Rs.2,00,000/- (Rupees two lakhs only) within a period of eight (8) weeks from the date of receipt of a copy of this order. In respect of the rest of the amount, the defendant/judgment debtor is directed to furnish bank guarantee within the said period of eight (8) weeks from the date of receipt of a copy of this order. 14. With the above observations, both the Civil Revision Petitions are disposed of. There shall be no order as to costs. As a sequel thereto, the miscellaneous petitions, if any, pending in these Civil Revision Petitions shall stand closed.