Telangana High Court
Mohd Jaleeluddin vs Mohd Abdul Saleem on 10 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
Civil Revision Petition No.5868 of 2017
ORDER:
This Civil Revision petition is filed aggrieved by the order dated 19.09.2017 passed in E.P.No.36 of 2015 in O.S.No.44 of 2009 on the file of Senior Civil Judge, Nizamabad.
2. Heard Sri Umesh Patil, learned counsel appearing on behalf of Sri G.Dinesh Patil, learned counsel for the petitioner and Ms.P.Kalpana on behalf of Sri P.Bhaskar, learned counsel for the respondent.
3. Petitioner herein is the judgment debtor and Respondent is the decree holder. For convenience, the parties are hereinafter referred to as they are arrayed before the executing Court.
4. Brief facts leading to filing of present case are that initially the suit was filed by the respondent in O.S.No.44 of 2009 against the petitioner herein for eviction on the file of Senior Civil Judge, Nizamabad. The matter was settled amicably CRP.No.5868 of 2017 2 between the parties and the decree-holder obtained an award against the judgment debtor in O.S.No.44 of 2009 on 08.09.2010 before the Lok Adalat Bench at Nizamabad for eviction of the suit schedule property, arrears of rent etc. The operative portion of the award reads as follows:-
1. That the plaintiff is the owner of the House bearing Municipal No.9-151, situated at Ahmedpura colony, Nizamabad and the defendant is the tenant of the said house in ground floor and first floor.
2. It is agreed that the defendant/tenant paid the rent an amount of Rs.7,000/- (Rs. Seven Thousand only) per month till June, 2010 to the plaintiff.
3. It is agreed that the defendant/tenant shall remain as tenant in the suit schedule property up to August, 2010 and the defendant/tenant shall vacate the suit schedule property by the end of August, 2010 without fail and hand over the vacant possession of the suit schedule property to the plaintiff in good condition and in case there is found any damage to any structure, windows, doors, flooring, electrical wiring, switches etc., then the defendant shall repaid the same with his own costs. If the defendant/tenant fails to vacate the premises by the end of august, 2010 the rent has enhanced @ Rs.8,000/- per month with effect from September, 2010.
4. That the defendant/tenant shall pay the electricity consumption charges to the Electricity Department regularly in respect of the Service connection Nos. 13070 L2 MM3/5 and 74205 L2 and during the period of tenancy, if any pilferage act is done, the defendant is solely responsible for the same.CRP.No.5868 of 2017
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5. The judgment debtor did not vacate the suit schedule property contrary to the terms of award. Therefore, the respondent herein filed E.P.No.36 of 2015 in O.S.No.44 of 2009 under Order XXI Rule 7 for arrest and detention of the judgment debtor and for decretal amount. The judgment debtor is liable to pay arrears of rent at Rs.8,000/- per month from September, 2011 to August, 2013. It is further averred in the E.P. that the petitioner is also liable to pay electricity charges of Rs.1585/-, water charges of Rs.2,100/- for the period from November 2011 to July, 2013 and damages caused to the property at Rs.15,000/- apart from rent of Rs.1,92,000/-.
6. The judgment debtor filed a counter in the said E.P. contending that he vacated the suit schedule property on 30.07.2010 itself and handed over the vacant possession of the same to the decree holder and therefore, the decree holder is not entitled to collect rent, electricity charges, water charges and damages Rs.1,27,000/-.
7. During the course of enquiry, the decree-holder examined himself as PW1 and another witness as PW2 and got CRP.No.5868 of 2017 4 marked Ex.A1 document. On behalf of JDR, he examined himself as RW1 and got examined another witness as RW2.
However, no documents were marked.
8. The Execution Court after due consideration of pleadings, documents on record allowed the E.P. vide order dated 19.09.2017 and directed the JDR to pay Rs.1,92,000/- to the decree holder within a month from the date of order, failing which arrest warrant will be issued to the JDR for his detention. Though the JDR stated that he vacated the premises on 30.07.2010 and handed over the possession to the decree holder, as no material is placed before the Execution Court, the said Court came to the conclusion that the JDR did not vacate the premises. Further, the oral testimony of PW1 supported that the judgment debtor did not vacate the subject premises and so, he got the JDR evicted through process of law and got marked Ex.A1-certified copy of panchanama, dated 29-07-2013 and the said fact was also corroborated by an independent witness, who is examined as PW2. The schedule property was delivered to the decree holder as per warrant issued by the CRP.No.5868 of 2017 5 Court by breaking open the lock. Therefore, the trial Court did not accept the contention of the JDR that he vacated the premises on 30.07.2010.
9. Learned counsel for petitioner by reiterating the contentions raised would submit that the Execution Court erred in dismissing the Execution Petition and passing the impugned order and further contended that Execution Court also failed to take into consideration the guidelines of Hon'ble High Court in Jolly George Varghese and another vs. The Bank of Cochin 1, R.J.V.Sastry Vs. Bank of India 2 and Kalindindi Rama Raju vs. Vijaya Bank 3, before allowing the execution petition, therefore, order challenged under this revision is liable to be set aside.
10. Learned counsel for petitioner also submitted that Execution Court erred in neither holding proper enquiry nor discharging the statutory obligation contemplated under Order 1 (1980) 2 SCC 360 2 1978 SCC online AP 17 3 2001 SCC online AP 562 CRP.No.5868 of 2017 6 XXI, Rules 31, 37, 39, 40 of CPC, as such, impugned order is illegal and unenforceable and was passed without following due procedure as contemplated under the law, therefore on this ground also, the impugned order is liable to be set aside.
11. Per contra, the learned counsel for respondent would submit that the order passed by the Execution Court is proper and based upon the evidence and material, pleadings, particularly the panchanama, dated 29.07.2013, by which, the subject property was delivered to the Decree Holder. Finally, he contended that there are no grounds to set aside the order and prayed to dismiss the same.
12. A perusal of the impugned order passed by the Execution Court would show that the Execution Court has considered the evidence placed on record, more particularly, the evidence of RW1. The RW1-Judgment debtor in his cross examination admitted that he was doing real estate business as well as sale of submersible motors. He nowhere stated that he has no means to pay the decretal amount and therefore, the Court has come to conclusion that the JDR despite having CRP.No.5868 of 2017 7 sufficient means, intentionally failed to pay the decretal amount.
13. There is no dispute with regard to the ratio laid down in judgment referred to by the learned counsel for petitioner in Jolly George Varghese (1 supra) with regard to arrest of JDR. However, in the present case Execution Court has recorded specific reasons for allowing the Execution Petition and consequently, issued arrest warrant in view of default by JDR in payment of decretal amount, despite being solvent which is evident from the evidence on record that he was a businessman engaged in real estate as well as sale of submersible motors. Therefore, the decision of Jolly George Varghese (1 supra), referred to by the petitioner, has no application to the facts of the present case.
14. Taking into consideration the reasons recorded by the executing Court, this Court does not find any merit in the Civil Revision Petition and further, the petitioner failed to point out any irregularity, illegality committed by Execution Court to CRP.No.5868 of 2017 8 interfere with the impugned order and therefore, the Civil Revision Petition fails and is accordingly, liable to be dismissed.
15. At this stage, the learned counsel for petitioner requested some time to pay the balance amount. Accordingly, the petitioner is granted two months time to pay the balance amount from today.
16. Accordingly the Civil Revision Petition is dismissed. No order as to costs.
17. As a sequel, miscellaneous applications pending if any, shall stand closed.
____________________________________ LAXMI NARAYANA ALISHETTY, J Date: 10.04.2024.
BV