THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
C.R.P.No.2422 of 2009
ORDER:
This Civil Revision Petition is filed by the revision petitioner/judgment debtor in E.P.No.104 of 2005 in O.S. No.981 of 1998 assailing the order dated 06.04.2009 on the file of the learned V Senior Civil Judge, City Civil Court, Hyderabad.
2. The revision petitioner is the judgment debtor in E.P. No.104 of 2005 and defendant in O.S.No.981 of 1998 and that the judgment and decree dated 28.09.2004 in the said Original Suit has attained finality. Thereafter, the decree holders have filed Execution Petition in E.P. No.104 of 2005 for recovery of possession and arrears of rent. In E.P.No.104 of 2005, the decree holders have alleged that the suit was decreed on 28.09.2004 and it was not challenged by the judgment debtor/defendant. Previously, they have filed E.P.No.131 of 2004, it was closed on payment of Rs.54,586/- on 19.04.2005. After Page 2 of 10 AVR,J CRP No.2422 of 2009 deduction of the said amount, the judgment debtor is still liable to pay Rs.2,92,560/-, as such the said E.P. is filed.
3. Whereas, the contention of the judgment debtor/revision petitioner herein is that he is the Managing Director of Grace Hospital Corporation, the E.P. is filed against him in his individual capacity. He has filed a Memo dated 26.06.2004, vide SR No.3695 of 2004 as to delivery of vacant possession of the suit schedule property on 20.06.2004 itself. The arrears of rent payable by the judgment debtor after the termination of tenancy is at the rate of Rs.8,670/- per month and the same is worked out to Rs.95,370/-. The Court has awarded damages @ Rs.10,000/- per month. From the date of termination, i.e., from 15.08.1998 to 26.06.2004 for 70 months, which comes to Rs.7 lakhs, totally the amount payable by the judgment debtor is worked out at Rs.7,95,370/- and Rs.20,677/- being the cost awarded in the suit and Rs.5,280/- towards water charges. Thus, a total amount of Rs.8,11,327/- is payable by the judgment debtor to the Page 3 of 10 AVR,J CRP No.2422 of 2009 decree holders, but he has paid an amount of Rs.8,27,202/- and he is not liable to pay any amount.
4. The trial Court during enquiry recorded the evidence of decree holder No.1 as PW.1, Exs.A.1 to A.3 documents were marked. Thereafter, on behalf of judgment debtor, he is examined as RW.1, Exs.B.1 to B.3 were marked. On careful appreciation of the entire oral and documentary evidence, the trial Court has allowed the execution petition attaching the movable properties of judgment debtor for non-payment of E.P. amount and accordingly, the attachment of movables of judgment debtor was ordered. Feeling aggrieved by the said orders, this civil revision petition is filed.
5. Heard the learned counsel for the revision petitioner/judgment debtor and the respondents/decree holders. The submissions made on either side have received due consideration of this Court.
6. The learned counsel for the revision petitioner/ judgment debtor submitted that he would file a calculation Page 4 of 10 AVR,J CRP No.2422 of 2009 memo showing the payments made by the revision petitioner/judgment debtor. Accordingly, this matter was reserved on 29.10.2022 with a liberty to the learned counsel for the revision petitioner/judgment debtor for filing calculation memo with due notice to other side within one week from that day in the Registry, but till date, no such calculation memo is filed by the revision petitioner/judgment debtor.
7. Be it stated that the execution petition is filed by the decree holders claiming an amount of Rs.2,92,560/-. It is a fact that in the Original Suit No.981 of 1998, decree was obtained against the defendant viz., Grace Hospital Corporation, represented by Managing Director, Dr. K.A. Sattar Khan. Whereas, the present Execution Petition is filed against Dr. K.A. Sattar Khan for Grace Hospital Corporation.
8. The learned counsel for the revision petitioner strenuously contends that the execution petition is not maintainable for the simple reason that the execution petition is filed against the wrong person. Though the Page 5 of 10 AVR,J CRP No.2422 of 2009 judgment debtor has handed over the possession of E.P. schedule property on 25.06.2004 itself, the decree holders have been claiming the rents/damages till December 2007, not entitled for the amounts, the trial Court has erroneously concluded that the decree holders are entitled for the said amount.
9. It is true that as per the judgment and decree in O.S.No.981 of 1998, the defendant is Grace Hospital Corporation represented by Managing Director, Dr. K.A. Sattar Khan, whereas the present E.P. is filed against Dr. K.A. Sattar Khan for Grace Hospital Corporation. Such objection as to description of the defendant/judgment debtor is raised for the first time. It is pertinent to note that on one hand, the judgment debtor is claiming that he has paid an amount of Rs.8,27,202/- against the claim of Rs.8,11,327/- i.e., he has paid excess amount to the decree holders and that he has handed over the vacant possession of the suit schedule property on 26.06.2004 itself. On the other hand, he is taking a plea that the Execution Petition filed against him is not maintainable. Page 6 of 10
AVR,J CRP No.2422 of 2009
10. The admitted or undisputed facts of the case are that the judgment debtor did not prefer an appeal against the judgment and decree in OS No.981 of 1998 and it has attained finality. Previously, the decree holders have filed E.P.No.131 of 2004 wherein the judgment debtor has paid Rs.54,586/- and accordingly after payment of the said amount, E.P. was closed and for the remaining amount, the present E.P. is filed. Undisputedly, the decree holders have previously filed E.P. Nos.109 of 2001, 24 of 2003 and 42 of 2004. For the first time, the judgment debtor has raised such objection as to the description of the judgment debtor through this Execution Petition.
11. Having regard to the fact that the plaintiffs have obtained decree against the Grace Hospital's Managing Director and the said decree has attained finality and the description is only mentioned as Dr. K.A. Sattar Khan, Grace Hospital. In my considered opinion, such description will not change the status of the judgment debtor, since in the judgment it is mentioned as Grace Hospital Corporation, represented by Dr. K.A. Sattar Khan, Page 7 of 10 AVR,J CRP No.2422 of 2009 Managing Director and in the E.P., it is only mentioned as Dr. K.A. Sattar Khan for Grace Hospital Corporation. Thus, whether Grace Hospital Corporation, represented by its Managing Director, K.A. Sattar Khan or Dr. K.A. Sattar Khan representing the Grace Hospital Corporation does not make any difference because either way, Dr. K.A. Sattar Khan is representing Grace Hospital Corporation. Hence, in the factual matrix of the case as discussed above, I do not find any force in the submission made by the learned counsel for the judgment debtor/revision petitioner.
12. Secondly, the contention of the revision petitioner/judgment debtor is that he has vacated and handed over the vacant possession of the premises to the decree holders on 26.06.2004, keys were delivered through Eshwar Rao, who is an employee. There is no evidence to show that one Eshwar Rao is the employee working under judgment debtor or that he has handed over the keys of the premises after vacating the same either on 25.06.2004 or on 26.06.2004 or on any other day prior to December 2004. Therefore, in my considered opinion, the findings Page 8 of 10 AVR,J CRP No.2422 of 2009 recorded by the trial Court that there is no evidence in support of the plea taken by the judgment debtor that he handed over the case of the premises to the plaintiff through Eshwar Rao either on 25.06.2004 or on 26.06.2004 has no basis is sustainable.
13. Thirdly, the claim of judgment debtor that he has paid more amount than what claimed by the decree holders has no force for the simple reason that the calculations made in his counter are not supported by any other receipts or vouchers. Though he is claiming that he is only liable to pay damages for 70 months from 15.08.1998 to 26.06.2004 at the rate of Rs.10,000/- per month, there is no evidence to show that vacant possession of the premises was delivered on 26.06.2004, whereas the admitted case of the decree holders is that the possession was not handed over till 27.12.2004.
14. Therefore, in the above circumstances, viewed from any angle, there is no merit in the contention raised by the judgment debtor/defendant that the possession of the suit schedule property was handed over either on Page 9 of 10 AVR,J CRP No.2422 of 2009 25.06.2004 or on 26.06.2004. Whereas, the evidence of PW.1 appears to be reliable, to the effect that the keys were handed over to PW.1 only on 28.12.2004, through his Office Assistant Murtuza. As such, in the above factual background, in the absence of filing the calculation memo as submitted by the learned counsel for the revision petitioner/judgment debtor, considering the claim made by the decree holders in the Execution Petition for an amount of Rs.2,92,560/-, I do not find any irregularity or infirmity in appreciation of the oral and documentary evidence available on record by the trial Court.
15. Therefore, on overall consideration of the oral and documentary evidence available in E.P.No.104 of 2005, I do not find any infirmity in the findings recorded by the trial Court and the order impugned does not warrant any interference by this Court and it is sustained.
16. In the result, the Civil Revision Petition is dismissed. However, in the circumstances of the case, both the parties shall bear their respective costs. Page 10 of 10
AVR,J CRP No.2422 of 2009 As a sequel, miscellaneous applications, if any pending in this civil revision petition, shall stand closed.
_________________________________ A. VENKATESHWARA REDDY, J.
Date: 06.12.2022 Isn