THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL REVISION PETITION No. 2669 of 2023
ORDER:
This Civil Revision Petition is filed against the docket Order dated 05.07.2023 in E.A.No.177 of 2023 in E.P.No.531 of 2018 passed by the learned Principal District Judge, Suryapet which reads as follows:
"Heard both sides. Perused the record. This petition is filed by the petitioner/decree holder U/o.21 Rule 106 r/w Sec.151 of CPC with a prayer to restore the E.P. closed on 22.02.2023 and to permit the petitioner/decree holder to proceed with the E.P. in the interest of justice. The respondent/J.Dr. filed counter and opposed the petition. On perusal of the record it reveals that the petitioner/decree holder herein filed EP.No.531/2018 against the respondent/J.Dr. for realization of decretal amount of Rs.47,56,459/- by way of attachment and sale of immovable property shown in the petition. However, on 22.2.2023 the above E.P. was dismissed for default. It is not an order passed on merits of the case. Therefore, in the circumstances of the case, it is just and proper to set aside dismissal order, dt:22.02.2023 otherwise, the petitioner/decree holder will put to irreparable loss and hardships. Therefore, in order to meet the ends of justice the petition is allowed and dismissal order, dt:22.02.2023 in the above E.P is set aside on payment of costs of Rs.500/-. The E.P. is restored to its original file".
2. Petitioners/defendants stated that one Koganti Venkata Ratnam/respondent No.1 herein filed O.S.No.55 of 2004 for recovery of promissory note debt against them and he died intestate on 03.04.2008. The said suit was compromised with terms and accordingly Lok Adalat Award was passed on 2 29.09.2006. As per the Lok Adalat Award terms, the Judgment Debtors have to pay the Award amount on or before 30.06.2007 and conditional attachment before Judgment was also passed in respect of the item Nos.1 to 4 properties in I.A.No.4948 of 2004 in O.S.No.55 of 2004, but till today they have not paid any amount, as such respondent No.2 herein filed the Execution Petition in E.P.No.531 of 2018 to attach item Nos.1 to 4 of the suit schedule property and proclamation and also for sale notice of item Nos.1 to 4 to recover the decreetal amount, but it was dismissed on 22.02.2023. Aggrieved by the said Order, respondent No.2 herein filed E.A.No.177 of 2023 for restoration of Execution Petition which was closed on 22.02.2023 and they opposed the petition by filing the counter. The trial Court after considering the arguments of both sides allowed the petition on costs of Rs.500/- by setting aside the dismissal Order of the Execution Petition dated 22.02.2023 and restored the Execution Petition in E.P.No.531 of 2018. Aggrieved by the said Order, preferred the present Civil Revision Petition.
3. The learned Counsel for the petitioners/Judgment debtors mainly contended that the trial Court erroneously held that on 22.02.2023, the Execution Petition was dismissed for default, but it was dismissed on merits, as such the remedy is 3 to file a Civil Revision Petition before this Court for restoration of E.P.No.531 of 2018. The provisions of Order 21 rule 106 of C.P.C are not applicable for restoration of Execution Petition. Therefore, requested this Court to set aside the Order dated 05.07.2023 passed in E.A.No.177 of 2023 in E.P.No.531 of 2018 in O.S.No.55 of 2004.
4. The docket Order of the trial court in E.P.No.531 of 2018 reads as follows:
"D.Hr called absent. No representation. Heard and perused the counter filed by the other side. The original/D.Hr is no more and the petition also filed and EP is closing to be deceased daughter of original D.Hr. It is noticed that she did not file any piece of paper to show the deceased daughter of original D.Hr. This EP is filed without preparing any document to show that she is LR of original D.Hr. Moreover, she is not present and no representation on her behalf. Hence EP is dismissed".
5. The learned Counsel for the petitioners herein contended that E.P.No.531 of 2018 was dismissed on the ground that respondent No.2 herein has not filed any document to show that she was the daughter of the original Decree holder and it was not dismissed for default. When an application was filed under Order 21 rule 106 of C.P.C to set aside the said Order dated 22.02.2023, the trial Court erroneously observed that it was dismissed for default and restored the same. In fact, it cannot be restored by the same Court and it is for the respondents 4 herein to file a Civil Revision Petition against the Order dated 22.02.2023 before this Court. Considering the arguments of the learned Counsel for the petitioners herein, this Court finds that it is just and reasonable to allow the present Civil Revision Petition.
6. In the result, the Civil Revision Petition is allowed by setting aside the docket Order dated 05.07.2023 passed by the trial Court in E.A.No.177 of 2023 in E.P.No.531 of 2018. There shall be no Order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 02.11.2023 tri 5 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL REVISION PETITION No. 2669 of 2023 DATE: 02.11.2023 TRI