Tatineni Sri Devi, vs Parise Mamillaiah,
2022 Latest Caselaw 5524 AP

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       THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

             CIVIL REVISION PETITION No.93 of 2017

O R D E R:

This Civil Revision Petition is filed by the petitioners / Judgment

Debtors /defendants under Section 115 of Civil Procedure Code (in short

CPC) against the Orders passed by the learned Senior Civil Judge,

Avanigadda, in E.P.No.78 of 2015 in O.S.No.189 of 2013, dated

14.10.2016, wherein and whereby the learned Executing Court allowed

the execution petition filed by the respondent/DHr holding that execution

petition schedule property of revision petitioners/JDrs is liable to be

attached and can be sold for realization of debt due to the

respondent/DHr.

2. The case of the revision petitioners in brief is that as per orders of

the executing court, on receipt of notice the revision petitioners made

appearance and also filed counter in execution petition stating that they

preferred appeal suit against Judgment and decree in O.S.No.189 of 2013

wherein they sought for stay of execution of decree of the suit vide

A.S.(SR).No.457 of 2016 on the file of High Court of Andhra Pradesh,

which is pending and prays to dismiss the petition.

3. As per the information available to this Court basing records a suit

has been filed by the respondent/DHr in O.S.No.189 of 2013 against the

revision petitioners/JDrs on the basis of pronote said to have been

executed by one Mr.T.Rama Krishna and the 1st petitioner/1st JDr and

thereafter suit was decreed on 06.10.2015 wherein trial court directed the

revision petitioners/JDrs to pay a sum of Rs.9,85,000/- from out of the

estate of the deceased Mr.Rama Krishna and also casting personal liability

on the 1st revision petitioner/1st JDr, which revision petitioners failed to

pay due to that the respondent sought attachment of immovable property

and sale in Court auction for realization of decretal debt.

4. The learned Executing Court after hearing both sides allowed

execution petition over ruling objections raised by the revision petitioners

and held that execution petition property is liable to be attached and can

be brought to sale for realization of debt due to the respondent/DHr.

5. Aggrieved by the orders passed by the trial Court, the present Civil

Revision Petition is filed by the JDrs on the ground that one Mr.E.Lakshmi

Narayana is not their advocate but they engaged Mr.D.B.C.L.V.Prasad as

their counsel and one Mr.K.Samba Siva Rao and Eswararao are his juniors,

who also filed vakalat on behalf of the revision petitioners but executing

court passed orders without taking into consideration of the said fact due

to that it is illegal and unsustainable. They also alleged that

respondent/DHr played fraud. It is also the contention of the revision

petitioners that suit in O.S.No.189 of 2013 filed by the respondent/DHr

was decreed on 06.10.2015 against which they preferred A.S.No.113 of

2016, which is pending and attachment of their property and auctioning

the same without following the procedure prescribed under law is illegal

and against the principles of natural justice, they prays to allow the

revision petition and set aside the orders passed by the executing Court

on 14.10.2016.

6. I have heard learned counsel for the revision petitioners.

7. It is the contention of the learned counsel for the revision

petitioners that the revision petitioners have not engaged advocate

Mr.Lakshmi Narayana but the respondent played fraud and obtained the

orders from the executing Court. She submits that today case is posted

for sale of execution petition schedule properties belonged to the

petitioners though appeal preferred by the petitioners before this Court is

pending, she prays to allow the revision petition.

8. Now the issue that emerges for consideration of this Court is:-

"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?"

POINT:-

9. Before going into the merits of the case, it would be beneficial to

quote Order XXI Rule 54 of CPC, which reads as under:-

54. Attachment of immovable property.- (1) Where the property is immovable, the attachment shall be made by an Order prohibiting the judgment debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(1) The Order shall also require the judgment debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.

(2) The Order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the Order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court house, and also, where the property is land paying revenue to the government, in the office of the Collector of the District in which the land is situate and, where the property is

land situate in village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.)

10. It is admitted fact that the respondent, who filed suit for recovery

of money basing on the pronote alleged to have been jointly executed by

the deceased Mr.T.Rama Krishna and the 1st petitioner/D.1 obtained

decree on 06.10.2015 against which the petitioners said to be preferred

A.S.No.113 of 2016 before this Court, which is pending. It is not the

contention of the revision petitioners that they also obtained stay of

execution of the decree in appeal filed by them before this Court. It is also

not the specific contention of the revision petitioners that they have not

filed any counter before executing court. Even otherwise, contents in the

counter, which are discussed by the learned executing court in its order

are similar to the contentions raised by the revision petitioners in the

present revision petition. It appears that after obtaining decree by the

respondent on 06.10.2015, he filed execution petition in the year 2015

itself, which is within two years from the date of decree and thereafter

filed petition for execution of decree under Order XXI Rules 54, 64, 66 and

82 C.P.C seeking attachment and sale of execution petition schedule

property for realization of decretal amount. The executing Court at the

first instance as execution petition is filed within two years ordered for

attachment of execution petition schedule property of the petitioners and

also ordered for notice said to be served and attachment effected on

10.12.2015. Then executing Court after considering the contentions

raised by both sides held that execution petition schedule property is

liable to be attached can be brought to sale for realization of execution

petition debt. It is also observed by the executing Court that the

petitioners/JDrs are admittedly legal heirs of deceased Mr.T.Rama Krishna

one of the executants of suit pronote. It is also observed that revision

petitioners/JDrs not denied their ownership of execution petition schedule

property. Now also it is not the contention of the revision petitioners/JDrs

that execution petition schedule property not belongs to them. The

learned executing Court after following due procedure ordered for

attachment and notice as per Order XXI Rule 54 C.P.C and thereafter

considered the contentions raised by both sides and passed orders. This

Court did not find any irregularity or illegality in the orders passed by the

executing Court, which needs no interference by this Court under Section

115 C.P.C.

11. In the result, Civil Revision Petition is dismissed. No order as to

costs.

Consequently, miscellaneous petitions pending if any., shall stand

closed.

____________________________ JUSTICE BANDARU SYAMSUNDER Date :24.08.2022 chb

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.93 of 2017

Date : 24.08.2022

chb