HONOURABLE SMT. JUSTICE P.SREE SUDHA
C.R.P.Nos. 1900 and 1999 of 2022
COMMON ORDER:
Since the subject matter of these two revisions is
interrelated and the parties are also same, they are being
disposed of by this common order.
C.R.P.No.1900 of 2022
This revision is filed against the docket order, dated
16.06.2022 passed by the learned V-Additional District
Judge, Bodhan, in I.A.No.71 of 2022 in an unregistered
A.S.Nil of 2022 (now numbered as A.S.No.3 of 2022).
Respondent herein (defendant) filed the aforesaid
I.A.No.71 of 2022 under Section 5 of Limitation Act seeking to condone the delay of 18 days in filing the appeal against the judgment and decree passed in O.S.No.54 of 2018 dated 22.02.2021 on the file of the Senior Civil Judge, Bodhan. It is stated that due to spread of Covid-19 at the relevant point of time, the defendant could not approach his Counsel and file 2 the appeal in time and if the delay is not condoned, he will be put to irreparable loss and his right of contest would be defeated.
The appellate Court, on a Consideration of the entire material available on record, held that there is sufficient cause to condone the delay of 18 days in preferring the appeal and accordingly allowed the application.
Aggrieved by the aforesaid order, the revision petitioner/plaintiff filed the present revision contending that the appellate Court erroneously allowed the application without issuing any notice and without affording an opportunity to file counter and, therefore, the order passed by the appellate Court is liable to be set aside.
Heard the learned Counsel for the revision petitioner/plaintiff. There was no representation on behalf of the learned Counsel for the respondent/defendant despite granting sufficient opportunity for arguing his case. Perused the entire material placed on record. 3
Suit being O.S.No.54 of 2018 filed by the revision petitioner/plaintiff against the respondent/defendant for recovery of suit amount was decreed by the trial Court, on 22.02.2021, for a sum of Rs.14,22,000/- together with subsequent interest @ 12% per annum from the date of suit till the date of decree and thereafter @ 6% per annum from the date of decree till the date of realisation on the principal amount of Rs.9,00,000/-. Thereafter, the revision petitioner/plaintiff filed E.P.No.2 of 2022 before the Civil Judge, Senior Division, Biloli, and the same is pending consideration. Subsequently, the respondent/defendant preferred an appeal being A.S.No.3 of 2022 before the V- Additional District Judge, Bodhan, against the judgment and decree passed in O.S.No.54 of 2018, dated 22.02.2021, along with delay condonation petition on 16.06.2022. Having regard to the facts and circumstances of the case, the appellate Court condoned the delay of 18 days in filing the appeal.
4
Although there was delay of 18 days in preferring the appeal, the respondent/defendant has been able to show sufficient reasons for such delay. The explanation offered by him, in my considered view, is satisfactory and convincing. In view of the facts and circumstances of the case and the reasons explained by the respondent/defendant and as the period of delay is only 18 days, this Court finds no reason to interfere with the impugned order of the appellant Court.
Accordingly, C.R.P.No.1900 of 2022 is dismissed. No order as to costs.
C.R.P.No.1999 of 2022 This revision is filed against the order, dated 13.07.2022, passed by the learned V-Additional District Judge, Bodhan, in I.A.No.75 of 2022 in A.S.No.3 of 2022. 5
Respondent/defendant filed the aforesaid application under Order 41 Rule 5 of C.P.C. seeking to stay the execution of the judgment and decree dated 22.02.2021 in O.S.No.54 of 2018 on the file of the Senior Civil Judge, Bodhan, till disposal of the main appeal.
In the affidavit filed in support of the application, it is stated by the respondent/defendant that revision petitioner/plaintiff filed O.S.No.54 of 2018 for recovery of money basing on the promissory note alleged to have executed by him and the same was decreed by the trial Court by judgment dated 22.02.2021. Aggrieved by the said judgment and decree, the defendant filed the aforesaid appeal being A.S.No.3 of 2022 on the file of the V- Additional District Judge, Bodhan. It is further stated that he did not borrow any amount from the plaintiff and the signature on the promissory note does not belong to him and that steps have been taken for sending Ex.A1- 6 promissory note to Expert opinion along with contemporary signatures. The plaintiff also obtained attachment of his agricultural land to an extent of Ac.5.11 gts in Sy.No.1254 of Karla BK Village of Biloli Taluq, Nanded District vide I.A.No.167 of 2018 and now he filed E.P.No.2 of 2022 for sale of the attached property; that the property already attached is worth more than Rs.50,00,000/- which is sufficient security for realization of the decretal amount.
Revision petitioner/plaintiff filed a counter contending that since the defendant is intending to drag on the matter, he prayed the Court to direct him to deposit the amount as per Order 41 Rule 3 (2) (c) of C.P.C.
Having heard the learned Counsel appearing on either side, the learned Additional District Judge, Bodhan, held that as the property of the defendant was already attached before judgment, no further security is required for 7 realization of the decree and accordingly granted Stay of operation of judgment and decree of the trial Court till disposal of the appeal.
Aggrieved by the aforesaid order, the present revision has been filed by the revision petitioner/plaintiff contending that the Suit being O.S.No.54 of 2018 filed by him against the respondent/defendant for recovery of suit amount was decreed by the trial Court, on 22.02.2021, for a sum of Rs.14,22,000/- together with subsequent interest @ 12% per annum from the date of suit till the date of decree and thereafter @ 6% per annum from the date of decree till the date of realisation on the principal amount of Rs.9,00,000/-. The revision petitioner/plaintiff filed an Execution Petition for realization of the decretal amount along with a petition seeking to transfer said decree on the file of Senior Civil Judge Court, Bodhan to Senior Division Court at Biloli, Nanded District and as such it was 8 transferred and numbered as E.P.No.2 of 2022 on the file of the Civil Judge, Senior Division, Biloli, and the same is pending consideration. Thereafter, the defendant preferred an appeal being A.S.No.3 of 2022 before the V-Additional District Judge, Bodhan, against the judgment and decree passed in O.S.No.54 of 2018 dated 22.02.2021, along with a delay condonation petition on 16.06.2022 and the same was allowed and aggrieved by the said order, the revision petitioner preferred C.R.P.No.1900 of 2022. It is further stated that the appellate Court ought to have seen that the defendant has filed a false sworn affidavit in I.A.No.75 of 2022 stating that the property has already been attached in I.A.No.167 of 2018 and believing the same, the appellate Court granted stay without security,, which is mandatory as per Order 41 Rule 5 (5) of C.P.C. and as such the reasons assigned by the appellate Court while allowing the petition under Order 41 Rule 5 of C.P.C. is unsustainable in law. It is further stated that I.A.No.518 of 2019 filed by the 9 defendant for sending Ex.A1-Promissory Note to Expert along with admitted signatures, was allowed, on 28.11.2019, with a direction to the defendant to deposit an amount of Rs.8,000/- and as the defendant did not take any steps to furnish contemporary signatures for comparison, it was returned by the Truth Lab, Hyderabad on 07.01.2020. It is further stated that under Order 41 Rule 5(5) of C.P.C. a deposit or security is a condition precedent for an order by the appellate Court for granting Stay of execution of the decree and therefore, requested the Court to set aside the impugned order.
Admittedly, the respondent/defendant filed A.S.No.3 of 2022 against the judgment and decree passed in O.S.No.54 of 2018 dated 22.02.2021 on the file of Senior Civil Judge's Court, Bodhan. Along with the appeal, he filed I.A.No.75 of 2022 seeking Stay of execution of the said judgment and decree till disposal of the appeal. In the 10 affidavit filed in support of the application, the respondent/defendant, stated that the revision petitioner/plaintiff filed I.A.No.167 of 2018 seeking attachment before judgment of his agricultural land to an extent of Ac.5.11 gts. in Sy.No.1254 of Karla B.K. village, Biloli Taluq, Nanded District, which worth more than Rs.50,00,000/-, and the same was attached by the trial Court by order dated 16.04.2019. Thereafter, the revision petitioner/plaintiff filed E.P.No.2 of 2022 before the Civil Judge, Senior Division, Biloli, for sale of the said attached property. The contention of the revision petitioner/plaintiff is that the appellate Court erroneously stayed the operation of the judgment and decree in O.S.No.54 of 2018 without directing the respondent/defendant to furnish security in money cases as per Order 41 Rule 5 (5) of C.P.C. He further contended that in Paragraph No.4 of the affidavit, the respondent/defendant falsely stated that his property was already attached before judgment in I.A.No.167 of 2018 in 11 O.S.No.54 of 2018 and believing the same, the appellate Court granted Stay without any direction to furnish security and, therefore, the impugned order is liable to be set aside.
A perusal of the docket order dated 16.04.2019 passed in I.A.No.167 of 2018 in O.S.No.54 of 2018 reveals that attachment of the petition scheduled property under Order 38 Rule 5 of C.P.C. was not ordered and that the appellate Court merely basing on the false sworn affidavit of the respondent/defendant, granted Stay without any direction to furnish security. Since the said order of the appellate Court is patently erroneous, it is liable to be set aside and accordingly it is set side. However, this Court finds that it is just and reasonable to direct the respondent/defendant to deposit half of the decretal amount before the trial Court.
In the result, C.R.P.No.1999 of 2022 is allowed with a direction to the respondent/defendant to deposit half of the decretal amount before the trial Court within a period of 12 two months from the date of receipt of a copy of this order and on such deposit, the appellate Court is directed to proceed further with the appeal. There shall be no order as to costs.
However, C.R.P.No.1900 of 2022 is dismissed. No order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
_______________________ JUSTICE P.SREE SUDHA 21.12.2022 Gsn