Bobbili Satyanarayana vs Kommuri Bala Koteswarrao
2022 Latest Caselaw 4374 AP

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            THE HON'BLE SRI JUSTICE BATTU DEVANAND

            CIVIL REVISION PETITION NO.1217 of 2022


O R D E R:

Aggrieved by the Order dated 03.02.2022 in E.A.No.424

of 2016 in E.P.No.27 of 2015 in O.S.No.302 of 2012 on the file

of the Senior Civil Judge, Tadepalligudem, West Godavari, the

present Civil Revision Petition is filed by the petitioner.

02. Heard Sri T.V. Jaggi Reddy, learned Counsel for the

Petitioner and perused the material available on record.

03. Petitioner is the Defendant and the Respondent is the

plaintiff in O.S.No.302 of 2012 on the file of the Senior Civil

Judge, Tadepalligudem.

04. Learned counsel for the petitioner submits that the

respondent filed a suit in O.S.No.302 of 2012 before the

Senior Civil Judge, Tadepalligudem, for specific performance of

contract, and the same was decreed on 02.01.2014 by the

trial Court. Basing on the said decree and judgment, the

respondent filed Execution Petition No.27 of 2015 before the

Senior Civil Judge, Tadepalligudem, West Godavari. In the

Execution Petition, the petitioner filed E.A.No.424 of 2016 for

stay of execution of the E.P Proceedings. The trial Court, on

erroneous consideration of the facts, dismissed the said

petition.

05. Learned counsel further submits that the trial Court

ought to have seen that the impugned E.A. was filed under

Order 21 Rule 26 and Section 151 of CPC to stay all further

proceedings till disposal of I.A.Nos. 438 and 439 of 2015,

which were filed to condone delay of 398 days in filing the

petition and to set aside the ex parte decree dated 02.01.2004

in O.S.No.302 of 2012. The trial Court ought to have seen that

unless the Interlocutory Applications filed in the suit are

disposed of, the petitioner cannot execute the decree since the

said decree is an ex parte decree as the petitioner did not

receive the summons in the said suit. The trial Court failed to

see that the Interlocutory Applications are pending since 2015,

which is a sufficient cause shown by the petitioner to stay the

EP Proceedings. Since the Executing Court and the trial Court

are one and the same, unless the Interlocutory applications

filed by the petitioner are disposed of, the Executing Court

cannot proceed with the EP till the disposal of the said I.As.

The trial Court did not assign proper reason for dismissing the

said E.A. Therefore, he prayed to allow the Civil Revision

Petition.

FINDING OF THE COURT:

06. The core contention of the learned for the petitioner is

that the trial Court did not send summons to the petitioner in

the suit proceedings and thereby he could not participate in

the proceedings and as a result, the trial Court passed ex

parte decree in the suit and basing on the ex parte decree

only, the respondent filed E.P Proceedings and unless the

interlocutory Applications filed in the suit are disposed of, the

petitioner cannot execute the decree since the said decree is

an ex parte decree.

07. On 06.07.2022, this Court directed the Registrar

(Judicial), to call for the report from the Senior Civil Judge,

Tadepalligudem, West Godavari District, whether summons

are issued to the petitioner in O.S.No.302 of 2012 or not and

if the summons are issued, it was served on the defendant or

not.

08. This Court received the report from the Senior Civil

Judge, Tadepalligudem, West Godavari, wherein it is stated

that the trial Court issued summons to the petitioner through

court and registered post in the suit as well as the

Interlocutory application No.1776 of 2012. The suit summons

were duly served personally to the petitioner on 14.12.2012 in

the presence of Kothapalli Venkata Rao and K. Bala Koteswara

Rao. Notice sent through the Court was also served personally

in I.A.No.1776 of 2012. The registered post sent to the

petitioner was served on 18.12.2012 personally and

acknowledgment was received by the court on 20.12.2012.

Therefore, summons were issued by the Court to the

petitioner in O.S.No.302 of 2012 and those summons were

duly served personally on the defendant.

09. On careful perusal of the Report of the learned Senior

Civil Judge, Tadepalligudem, the contention of the learned

counsel for the petitioner that O.S.No.302 of 2012 on the file

of the Senior Civil Judge, Tadepalligudem, was decreed ex

parte without issuing summons/without service of summons to

the petitioner in the suit is wrong and contrary to the record. As

such, it is clear that the petitioner in spite of service of summons

in the suit, he did not participate in the suit proceedings. It

appears, with an intention to drag on the proceedings, he filed

several interlocutary applications in the suit and execution

proceedings with false contentions.

10. The petitioner filed I.A.No.424 of 2016 under Order 21

Rule 26 read with Section 151 of CPC to stay the proceedings

of the execution in O.S.No.302 of 2012 pending disposal of the

petitions in I.A.Nos. 438 and 439 of 2015, which were filed to

condone delay of 398 days in filing the petition and to set

aside the ex parte decree dated 02.01.2014 in O.S.No.302 of

2012. The trial Court rightly observed that as per Order 21

Rule 26 of CPC, the stay of the execution will be done only

when a decree was transmitted for its execution from other

Court or when an appeal is pending for Orders by the

Appellate Authority, and therefore, the trial Court is neither

Appellate Court nor the decree received. Further, in the

present case, the trial Court passed decree in favour of the

respondent and thereafter, the respondent filed execution

petition. Therefore, the trial Court has also rightly held that

the trial Court has no power to stay the proceedings in

O.S.No.302 of 2012. As such, there is no any illegality or

irregularity in the order passed by the trial Court.

11. Considering the facts and circumstances of the case and

the material available on record, this Court is fully agreeing

with the finding of the learned Senior Civil Judge,

Tadepalligudem, West Godavari District, and in our considered

view, no interference is warranted.

12. Accordingly, this Civil Revision Petition is dismissed.

13. There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any, pending in this case shall stand closed.

______________________ JUSTICE BATTU DEVANAND Dt. 20.07.2022 eha

THE HON'BLE SRI JUSTICE BATTU DEVANAND

CIVIL REVISION PETITION NO.1217 of 2022

Dt. 20-07-2022

eha