THE HONOURABLE SMT JUSTICE P.SREE SUDHA
C.R.P.No.2072 of 2023
ORDER:
This Civil Revision Petition is filed against the order of the Principal District Judge, Suryapet, dated 16.06.2023, allowing E.A.No.15 of 2023 in E.P.No.598 of 2018 in O.S.No.125 of 2019 filed by the plaintiff/Decree Holder, who is the respondent herein, under Section 151 C.P.C., seeking to issue fresh warrant of attachment of immovable property with modified boundaries as mentioned in the schedule for due execution of decree.
2. The facts, in brief, are as under:
The respondent/plaintiff filed the above suit against the revision petitioners/defendants for recovery of Rs.16,45,133/- together with future interest at the rate of 36% per annum from the date of suit till the date of realization. Summons sent to defendant No.1 returned PSS, J CRP No.2072 of 2023 2 unserved as refused. However, the plaintiff not pressed the suit against defendant No.2 and hence the suit against defendant No.2 was dismissed. Plaintiff's evidence was recorded. Basing on the evidence of plaintiff, who was examined as P.W.1, and the documents filed by him, the trial Court decreed the said suit in favour of the plaintiff and against 1st defendant firm by judgment dated 05.08.2016 holding that defendant No.1 firm represented by defendant No.2 is liable to pay a sum of Rs.16,45,133/- with interest at 7.5% per annum from the date of order till the date of realisation on the principal sum. Thereafter, the respondent/D.Hr. filed E.P.No.598 of 2018 seeking to attach the E.P. schedule immovable property of the judgment debtor/defendant No.1. The trial Court passed an attachment of the E.P. schedule property of the J.Dr. During the process of execution of attachment, the Bailiff of the Court had returned the warrant since the boundaries were not tallied. Therefore, the respondent/D.Hr again filed the PSS, J CRP No.2072 of 2023 3 aforesaid E.A.No.15 of 2023 seeking to issue a fresh attachment warrant with modified boundaries of the flat as mentioned in the schedule for due execution of the decree.
3. The Judgment Debtor No.2 filed counter and opposed the application stating that the D.Hr. himself withdrawn the suit against judgment Debtor No.2 and accordingly the trial Court passed decree and judgment against defendant No.1/J.Dr No.1. J.Dr.No.2 filed his vakalat in his individual capacity only, but not in the capacity of proprietor of J.Dr.No.1 firm. It is further stated that J.Dr.No.1 firm was already closed before filing of the suit by the D.Hr and the said fact was known to the D.Hr. The D.Hr. also filed two cheque bounce cases and the same were dismissed by the criminal Court and there was no property in the name of J.Dr No.1. The E.P. schedule shown by the D.Hr. is pertaining to 34 Flats, but not the schedule of Flat No.204. It is further stated that J.Dr.No.2 already alienated the E.P.
PSS, J CRP No.2072 of 2023 4 schedule property in favour of one K.Venkateswar Rao in the year 2014 itself, who in turn mortgaged the said house with Canara Bank, Kodad for housing loan and for educational loan of his daughter. Therefore, there is no property available as shown in the E.P. schedule and as such the trial Court cannot attach the property as it belongs to the said K.Venkateswar Rao. The D.Hr. has not filed any proof of ownership showing that the E.P. schedule property belongs to J.Dr.No.1. It is further stated that the D.Hr. unnecessarily dragged J.Dr.No.2 into the present legal proceedings by making him as a party to the E.P. proceedings though there is no decree against him and as such the present E.P. is not executable as per the provisions of Section 47 of C.P.C. Therefore, he prayed the Court to dismiss the application.
4, After considering the material available on record, the trial Court allowed the application and issued fresh warrant PSS, J CRP No.2072 of 2023 5 of attachment with the boundaries of the Flat as reflected in the registered sale deed bearing document No.2767 of 2011 dated 17.03.2011 with a direction to the Bailiff to execute the same. Challenging the same, the present Civil Revision Petition has been filed by the judgment debtors, inter alia, contending that the trial Court ought to have dismissed the application since the respondent/D.Hr. had filed for fresh attachment of the immovable property without seeking amendment of the schedule property under Order 6 Rule 17 of C.P.C. The trial Court at the first instance had issued warrant of attachment in E.P.No.598 of 2018 on 23.03.2023 without considering the submission that the D.Hr had already availed the remedy by filing a private complaint against the J.Drs for the offence punishable under Section 138 of N.I Act for dishonouring of the same cheque bearing No.177717 for Rs.10,13,253/- dated 11.07.2013 and the Criminal Court vide judgment dated 18.06.2015 passed in C.C.No.696 of 2013 (old C.C.No.1335 of 2013) found the PSS, J CRP No.2072 of 2023 6 J.Drs. not guilty of the said offence. Suppressing the said fact, the respondent/D.Hr. filed O.S.No.128 of 2015 on 16.07.2015, which was decreed on 05.08.2016, and obtained warrant of immovable property by misrepresenting to the trial Court and hence the same is liable to be set aside. He relied upon a decision of House of Lords in Salomon v. Salomon and Co. Ltd., wherein it was held that company is different/distinct legal entity and its members are not personally liable to the creditors of the company. He further contended that entire transactions are business/commercial purpose, whereas the trial Court had issued the impugned attachment order on the property which is in the personal capacity of the 2nd J.Dr and, therefore, the attachment of immovable property of the 2nd J.Dr. in the personal capacity is ex facie illegal and arbitrary. He further contended that J.Dr. No.2 already alienated the EP schedule property in favour of one K.Venkateswar in the year 2014 itself, who in turn mortgaged the same with PSS, J CRP No.2072 of 2023 7 Canara Bank, Kodad for housing loan and educational loan of his daughter. Therefore, he requested the Court to set aside the impugned order of the trial Court.
5. Heard both sides and perused the material available on record.
6. The suit was dismissed against defendant No.2/J.Dr.No.2 as it was not pressed by the plaintiff and a decree was passed against the 1st defendant firm/J.Dr.No.1 and that the property being attached belongs to J.Dr.No.2. This aspect was not decided by the trial Court. Though counter has been filed by J.Dr.No.2, the contents of it were not considered by the trial Court in the impugned order. Therefore, the impugned order of the trial Court is patently erroneous and is liable to be set aside and accordingly set aside. However, this Court finds that it is a fit case where the matter is to be remanded back to the trial Court for fresh consideration.
PSS, J CRP No.2072 of 2023 8
7. Under the aforementioned circumstances, the matter is remanded back to the trial Court with a direction to consider the counter filed by J.Dr.No.2 and dispose of the E.P. filed by the respondent/D.Hr. afresh on merits and in accordance with law after affording an opportunity of hearing to both sides.
8. Accordingly, the C.R.P. is disposed of. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_______________________ JUSTICE P.SREE SUDHA 02 .11.2023 Gsn