2019 vs The
2021 Latest Caselaw 4650 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO


               C.R.P.Nos.1039, 1042 and 1044 of 2021


COMMON ORDER:


       The respondents 1 to 3 obtained maintenance against one Sri

Kekeyi Chitti Babu by way of judgment and decree dated 30.07.2004 in

O.S.No.102 of 2004 in the Court of the Senior Civil Judge, Gudur.

Subsequently, they filed E.P.No.136 of 2009 for realisation of decretal

amount with interest and costs amounting to Rs.6,15,743/- by means of

sale of the E.P. Schedule property. The 8th respondent is the auction

purchaser. During the pendency of the said Execution Petition, Sri Chitti

Babu passed away and a fresh claim was made that the suit schedule

property had been sold by late Sri Chitti Babu during his life time, to one

Ravula Ankaiah Goud under a registered deed of sale dated 21.04.2008

for a valuable consideration of Rs.9,44,000/- and that the said Ravula

Ankaiah Goud has purchased the property without notice of the

maintenance claim of respondents 1 to 3 herein to the suit property.


       2.     The said Ravula Ankaiah Goud had passed away on

30.07.2010 bequeathing the E.P. schedule property to the petitioners

herein, under a registered Will dated 30.05.2008. Thereupon, the

petitioners filed E.A.No.163 of 2012 claiming the E.P. schedule property.

This claim petition has been resisted by respondents 1 to 3 on various

grounds. As the said property has already been sold by way of Court

auction, the 8th respondent, who is the successful auction purchaser, is

also resisting the said claim.


       3.     The Executing Court had taken up enquiry into the said

claim application, which had been going on for the past nine years. The
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petitioners herein had filed E.A.No.133 of 2019 to summon one witness to

give evidence in support of their claim petition. This application was

allowed on 20.12.2019 with a condition that the petitioners pay a sum of

Rs.5,000/- to respondents 1 to 3 on or before 02.01.2020. However, the

said condition was not complied with, resulting in dismissal of said E.A.


       4.     The petitioners moved E.A.Nos.3, 4 & 5 of 2020 before the

Executing Court. E.A.No.3 of 2020 was filed for extending the time

granted in E.A.No.133 of 2019 to pay the costs of Rs.5000/-. E.A.No.4 of

2020 was filed to reopen E.A.No.163 of 2012 for the purpose of adducing

further evidence, and E.A.No.5 of 2020 was filed to restore E.A.No.133 of

2019, which was dismissed for default on 02.01.2020. All the three

applications were dismissed by the Senior Civil Judge, Gudur on

25.02.2020.


       5.     Aggrieved by the said order of dismissal, the petitioners

have filed the present civil revision petitions, which are being disposed by

this common order.


       6.     Sri V. Roopesh Kumar Reddy, learned counsel for the

petitioners submits that the petitioners have a genuine case before the

Executing Court and the evidence of the witness, who was to be produced

under the order dated 20.12.2019 in E.A.No.133 of 2019 is a vital witness

whose evidence is essential for the case of the petitioners. He submits

that the delay in payment of costs had occurred only on account of the

reasons set out in the affidavit filed in support of the applications before

the Executing Curt.


       7.     Both Sri G. Jagadeeswar, learned counsel appearing for

respondents 1 to 3 and Sri Siva Prasad Reddy, learned counsel appearing
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for the 8th respondent-auction purchaser, would contend that the

applications have been filed by the petitioners before the Executing Court

and the revision petitions before this Court only for the purpose of

dragging the case and not on account of any genuine requirement of

producing the witness before the Court. They submit that the petitioners

have been dragging on the said E.P on one pretext or the other, and in

fact, this E.P. has been reopened six times, and the petitioners had

deliberately refrained paying the costs only for the purpose of filing the

present applications to further drag on the matter.


       8.      Heard Sri V. Roopesh Kumar Reddy, learned counsel for the

petitioners,   Sri   G.   Jagadeeswar,    learned   counsel   appearing     for

respondents 1 to 3 and Sri Siva Prasada Reddy, learned counsel appearing

for respondent No.8.


       9.      A perusal of the record does not inspire any confidence in

the applications filed by the petitioners. However, the fact remains that

the Executing Court in E.A.No.133 of 2019 had granted the petitioners an

opportunity to examine the witness on condition of paying costs. The said

opportunity was lost by the petitioners on account of non-payment of

costs of Rs.5,000/- within the stipulated time. In such circumstances, to

obviate any further controversy in the matter and to give a last

opportunity to the petitioners this Court is of the opinion that the

petitioners be given a last opportunity to examine the said witness.


       10.     -To ascertain the bona fides of the petitioners, time was

granted to Sri V. Roopesh Kumar Reddy, learned counsel for the

petitioners, to obtain instructions from the petitioners as to the availability

of the witness and whether the petitioners would be willing to pay the
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costs imposed by the Executing Court as well as this Court. After obtaining

instructions, Sri V. Roopesh Kumar Reddy, learned counsel for the

petitioners, has today produced and handed over to Sri G. Jagadeeswar

two Demand Drafts for a sum of Rs.5,000/- and Rs.3000/- respectively,

drawn in the name of the 1st respondent towards the payment of costs

directed under the order dated 20.12.2019 in E.A.No.133 of 2019 and as

costs in the present revision petitions. He has also submitted, on

instructions, that the witness would be available on 25.11.2021.


          11.   In the circumstances, these civil revision petitions are

allowed subject to the condition that the petitioners are given one last

opportunity to examine the witness cited in E.A.No.133 of 2019 on

25.11.2021. No further time will be granted for any reason whatsoever for

examining the witness. In the event of the absence of the witness or the

inability of the petitioners to obtain the presence of the witness on that

day, the order passed by this Court in the present civil revision petitions

shall stand vacated and the Executing Court shall carry on the matter as it

stood on 21.12.2019, without any further reference to this Court. It shall

also be open to the parties to intimate this order to the Executing Court

and seek advancement of the Execution Petition to 25.11.2021. There

shall be no order as to costs.


          As a sequel, pending miscellaneous petitions, if any, shall stand

closed.


                                             _________________________
                                              R. RAGHUNANDAN RAO, J.

15th November, 2021 Js.

5 RRR,J C.R.P.No.1039, 1042 & 1044 of 2021

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

C.R.P.Nos.1039, 1042 and 1044 of 2021

15th November, 2021 Js.