Andhra Pradesh High Court - Amravati

M.Venkateswara Reddy, vs M/S. Sri Ram Transport Finance ... on 18 June, 2021

            HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                              AND
                HON'BLE MS JUSTICE J. UMA DEVI

                     Civil Revision Petition No.62 of 2021

ORDER : (Per Hon'ble Sri Justice U.Durga Prasad Rao)


         Aggrieved by the order dated 01.12.2020 in E.P.No.25/2016 in

A.A.No.42/2009 passed by the learned I Additional District Judge, Kurnool,

the instant CRP is filed by the JDR No.1.


2.       The first respondent/DHR obtained arbitration award No.42/2009 and

appears to have filed execution petition No.358/2012 on the file of

Additional Senior Civil Judge, Kurnool basing on the pecuniary value of the

arbitration award. Attachment of immovable property of JDR No.1 was

ordered by the said Court. Thereafter, relying on the decision in

Potlabathuni Srikanth v. Shriram City Union Finance Limited1 wherein,

also it was held that the "Court" referred to in Section 34 and 36 of the

Arbitration & Conciliation Act, 1996 means the Court as defined under

Section 2(1)(e) of the Act which refers to a District Court, but not the Court

of a grade inferior to the Principal, Civil Court of original jurisdiction, the

Additional Senior Civil Judge, Kurnool returned the E.P. for presenting

before the District Court, Kurnool. Accordingly, the DHR filed execution

petition before the District Court, Kurnool which was made over to the

Court of I Additional District Judge, Kurnool.

(a) Then the I Additional District Judge, Kurnool ordered to issue

fresh notice to JDR No.1 under Order XXI Rule 54 CPC. On 08.06.2017,

learned Judge observing that JDR No.1 was set ex parte long back; all the

AIR 2016 AP 73 = MANU/AP/0618/2015

steps were over before the learned Additional Senior Civil Judge and at that

stage the E.P. was transferred and the sale papers and Encumbrance

Certificates were already filed, ordered that the matter to be posted for

hearing the DHR about the salable portion of the attached property. On

15.06.2017, batta was paid and fresh attachment warrant has been issued.

At the above stage, the JDR No.1 filed E.A.No.153/2018 under Order

XXI Rule 58 CPC r/w 151 CPC and prayed to declare the attachment

effected on 23.03.2014 the Additional Senior Civil Judge, Kurnool is null

and void as the said Court had no inherent jurisdiction and requested to defer

the sale of ground floor of E.P. schedule property on 14.12.2017 as no

notices were issued under Rule 54 and 66, no attachment was made over the

property proposed for sale and no proclamation was made. The said petition

was dismissed by the learned I Additional District Judge, Kurnool vide order

dated 12.07.2018. Aggrieved, the 1st JDR filed C.R.P.No.5196/2018. On

04.12.2019, a Division Bench of this Court disposed of the C.R.P. with the

following observations:

"11. On careful consideration, it is evident that the 1st JDr raised the issue that the Senior Civil Court in which the EP was originally filed lacked inherent jurisdiction and that therefore the proceedings in the said EP including the order of attachment ordered by the said Court, which lacked inherent jurisdiction, are null and void and that the same did not inure to the benefit of the DHr after the EP is transferred to the Court of the Additional District Court. It also contended that in the said circumstances the Additional District Court ought to have commenced the EP proceedings de novo. One of the other contentions of the 1st JDr is that notices under Rules 54 and 66 of the Code are not served though service of such notices is mandatory. In view of the said and other contentions, the Court below ought to have examined and recorded findings as to whether passing of any fresh order of attachment is necessary on the transfer of the EP to its file and if so whether any fresh order of attachment was passed by it; in the absence of such an order attachment passed by it, the Court below ought to have examined whether the Senior Civil Court, which originally entertained the EP and passed the order of attachment, lacked inherent jurisdiction; it also ought to have examined the validity of such attachment order passed by the Senior Civil Court and also the validity of the subsequent proceedings in the EP, which were taken up on the premise that such attachment order passed by the Senior Civil Court is valid in law. The Court below ought to have also examined as to whether notices under

Rules 54 & 66 are served on the DHr as required under law before the proceedings reached the stage of fixing a date for sale of the EP schedule property. A plain perusal of the order of the Court below shows that it failed to advert to, consider & determine the above said contentions of the 1st JDr, which require a detailed examination. As rightly contended, even if an application under Order XXI Rule 58 of the Code is not maintainable, the executing Court is duty bound to conduct the EP proceedings in strict accordance with the procedure established by law and see that no procedure is violated in bringing the EP schedule property to sale and in conducting the sale thereafter."

It was ultimately directed that the Court below shall examine the contentions

of the JDR No.1 detailed in paragraph No.11 of the order and also any other

issues which may arise for consideration before the execution petition.

3. Pursuant to the above order, the learned I Additional District Judge,

Kurnool conducted enquiry, wherein the DHR was examined as PW.1 and

during his cross-examination Ex.B1 was marked. The JDR No.1 did not

adduce any evidence. Learned I Additional District Judge, Kurnool

ultimately passed the order dated 01.12.2020 directing a fresh attachment

under Order XXI Rule 54 CPC and notice to JDR No.1 on payment of

process by DHR. The Court further directed that JDR No.1 shall furnish his

correct residential address by way of affidavit on or before 07.12.2020,

failing which the DHR shall pay process for issuance of fresh notice and

attachment under Order XXI Rule 54 CPC to JDR No.1 by mentioning

residential address shown in EP schedule and posted the matter to

29.12.2020.

Hence, the present Civil Revision Petition by JDR No.1.

4. Heard the arguments of Sri P.S.P. Suresh Kumar, learned counsel for

petitioner, and Sri K.Maheswar Rao, learned counsel for the respondents.

5. The main plank of the argument of learned counsel for petitioner is

that all the proceedings including attachment of the E.P. scheduled property

taken before the Court of Additional Senior Civil Judge, Kurnool are null

and void since the said Court has no inherent jurisdiction in view of the

judgment in Potlabathuni Srikanth's case (supra). As such, the attachment

ordered by the learned Additional Senior Civil Judge will be of no avail to

the DHR to continue the same before the learned I Additional District Judge,

Kurnool. This aspect has been raised before the Hon'ble High Court in

C.R.P. No.5196/2018 and in fact the Division Bench of this Court in its

order dated 04.12.2019 gave a direction to the I Additional District Judge,

Kurnool to examine the contentions of the JDR No.1 enumerated in Para 11

of the order and also other issues which may arise for consideration and

proceed further in the execution petition. However, learned I Additional

District Judge, Kurnool failed to consider the questions raised by the

petitioner/JDR No.1 which were mentioned in Para 11 of the order in

C.R.P.No.5196/2018 and therefore, the impugned order is arbitrary and

liable to be set aside.

6. Per contra, learned counsel for the respondent/DHR while supporting

the impugned order submitted that learned I Additional District Judge,

Kurnool has meticulously considered and answered the questions raised in

Para 11 of the order in C.R.P.No.5196/2018 as directed by the Division

Bench of this High Court and therefore, there is neither illegality nor

impropriety in the order impugned. Learned counsel thus prayed to dismiss

the C.R.P.

7. The point for consideration is whether the learned I Additional

District Judge, Kurnool has scrupulously and meticulously adverted to all

the questions raised by the petitioner/JDR No.1 enumerated in Para 11 of the

order in C.R.P.No.5196/2018 and answered them in accordance with

relevant provisions of law?

8. Point: we gave our anxious consideration to the directions in

C.R.P.No.5196/2018 given by the Division Bench of this Court and the

impugned order passed by the learned I Additional District Judge, Kurnool

to comprehend myself as to whether the direction was scrupulously and

meticulously followed by the learned Additional District Judge. At the

outset, it must be said that the order impugned is impregnable both factually

and legally and thus warrants no interference.

Coming to the C.R.P.No.5196/2018, in Para 11 of the order, the

Division Bench listed the questions raised by the petitioner/JDR No.1 to

challenge the order in E.A.No.153/2018. The important issues that were

raised by the petitioner/JDR No.1 are:

(i) The Additional Senior Civil Judge, Kurnool, before whom the E.P. was initially filed, lacked inherent jurisdiction and therefore, the proceedings before him including order of attachment of the E.P. schedule property are null and void and did not enure to the benefit of DHR.

(ii) The I Additional District Judge ought to commence the EP proceedings de novo.

(iii) The notices under Rules 54 and 66 of Order XXI CPC were not served on JDR No.1.

(iv) Though JDR No.1 remained ex parte and thereby the application under Order XXI Rule 58 CPC filed by him was not maintainable, still a duty is caste on executing Court to conduct EP proceedings in accordance with the procedure established by law.

9. It must be said that we will find that the learned I Additional District

Judge has answered all the above issues. His order reads thus:

"11) On perusal of records which shows that execution petition has been filed showing Jdr.1 is resident of 45/24K-15/5A, Ameena Abbas Nagar, Kurnool which house is sought for attachment and sale in the execution proceedings................xxx........... Therefore, Additional Senior Civil Judge Court, Kurnool which ordered for attachment of immovable property of Jdr.1 which had no inherent jurisdiction is not valid and this Court is of an opinion that fresh attachment under Order 21 Rule 54 has to be ordered to proceed further in this Court to avoid any objection and defects in sale of E.P. schedule property to be conducted in Court auction. The ratio laid down in the decision relied on by the learned Advocate for Dhr. In Narendar Singh and others Vs. The Indian Institute of Architects, in C.M.A. No.1784 of 2013, Judgment dated 28.11.2013 by Hon'ble High Court of Delhi is not applicable to the present facts of the case, as said decision is in respect of filing proceedings before the Court which has no pecuniary jurisdiction and territorial jurisdiction, not inherent jurisdiction. However, Jdr.1 who admittedly not challenged award by filing necessary petition before the District Court, now he cannot plead that award passed by arbitrator is not valid. The Jdr.1 who is now available is directed to furnish his correct residential address with door number by way of affidavit and receive Rule 54 attachment notice to be ordered by this Court.

12) In the result, Petition is disposed of with a direction to order fresh notice and attachment under Order 21 Rule 54 CPC. Hence, issue fresh notice to Jdr.1 under Order 21 Rule 54 CPC and also attachment of E.P. schedule property on payment of process by Dhr., Jdr.1 shall furnish his correct residential address by way of affidavit on or before 07.12.2020, failing which Dhr. Shall pay process for issuance of fresh notice and attachment under Order 21 Rule 54 CPC to Jdr.1 by mentioning residential address shown in E.P. schedule, call on 29.12.2020."

Therefore, it is clear that the executing Court wanted to issue fresh

attachment and notice under Order XXI Rule 54 CPC to avoid any

objections and defects in the sale of E.P. schedule property to be conducted

in Court auction. For this purpose, the Court directed the petitioner/JDR

No.1 to furnish his correct residential address with door number by way of

affidavit, failing which, DHR was at liberty to pay process for issuance of

fresh notice and attachment order to the address shown in the E.P. schedule.

In our considered view, all the issues raised by the petitioner/JDR No.1 were

taken into consideration and the impugned order was passed. Except

alleging that the order impugned has not followed the direction in CRP

No.5196/2018, the petitioner could not substantiate his allegation. Hence, I

find no merits in the C.R.P.