Andhra Pradesh High Court - Amravati
Ramoji Rushikesh vs B.Ramanjaneyulu on 22 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.919 of 2022
Between:
Ramoji Rushikesh, S/o Ramoji Rangaiah, aged
about 34 years, R/o D.No.16/151, Thilak
Nagar, Guntakal, Anantapuram District.
... Petitioner/J.Dr.
Versus
B.Ramanjaneyulu, S/o B.Ramudu, aged about
30 years, R/o D.No.19/346, Hanumesh Nagar,
Guntakal, Anantapuram District.
... Respondent/D.Hr.
Counsel for the petitioner : Sri P.V.N.Kiran Kumar
Counsel for respondent : Sri N.Chandra Sekhar Reddy
ORDER
Judgment debtor filed the above revision against the
order dated 02.02.2022 in E.A.No.42 of 2020 in E.P.No.78 of
2017 in O.S.No.81 of 2015 on the file of Junior Civil Judge,
Guntakal.
2. Respondent/Decree Holder filed suit O.S.No.81 of 2015
against the revision petitioner for recovery of amount.
Pending the suit, plaintiff filed I.A.No.199 of 2015 under
Order XXXVIII Rule 5 of CPC to attach the petition schedule
property. By order dated 07.09.2016 the said petition was
allowed, and the attachment effected on 29.09.2015 was
made absolute. Eventually, the suit was decreed on
07.09.2016. Pursuant to said decree and judgment,
E.P.No.78of 2017 was filed under Order XXI Rules 64 and 66
r/w Section 151 of CPC, to conduct public auction of
attached property to realize the E.P. amount. Auction was
conducted on 12.07.2019. Judgment Debtor filed E.A.No.42
of 2020 under Order XXI Rules 89, 90 and 106 of CPC.
3. In the affidavit filed in support of the petition, it was
contended interalia that decree holder filed the suit for
recovery of money and the suit was decreed exparte;
summons were not served on the petitioner; that plaintiff
served notices by way of substitute service; that petitioner is
in Kuwait from 04.09.2016; that recently few days back, site
owners called the petitioner and informed about proceedings,
then the petitioner got the proceedings; that mother of
petitioner filed a petition under Order XXI Rule 90 of CPC
and eventually, prayed the Court to set aside the sale.
4. Respondent/Decree holder filed counter and opposed
the application. It was contended interalia that in the suit the
judgment debtor appeared through advocate by name
V.Nagaraju, who filed written statement in suit and also
counter in the attachment petition and contested the suit and
petition; that suit was decreed; that judgment debtor as well
as his family members are well aware of the proceedings; that
in execution after the auction of property was conducted, the
auction purchased deposited sale consideration and stamp
duty amount; that this application is filed to delay the
proceedings and prayed to dismiss the petition.
5. By order dated 02.02.2022 the Court below dismissed
the application. Against the said order, the above revision is
filed.
6. Heard Sri P.V.N.Kiran Kumar, learned counsel for
revision petitioner and Sri N.Chandra Sekhar Reddy, learned
counsel for respondent.
7. Learned counsel for revision petitioner would submit
that decree holder obtained decree by playing fraud on the
Court. He would also submit that notices were served on
judgment debtor by way of substitute service and the
judgment debtor was residing in Kuwait from 04.09.2016. He
would further submit that E.P. amount is Rs.3,30,340/-,
whereas the value of schedule property is Rs.20,00,000/- and
he thus, prayed to set aside the sale.
8. In the suit decree was passed on 07.09.2016.
Defendant appointed an advocate who, inturn, filed vakalat.
He also filed written statement and counter in the petition
filed seeking attachment of property. Thus, the contention of
judgment debtor that he is not aware of the decree and the
trial Court passed an exparte decree is not correct for the
reasons stated supra. Suit was decreed on 07.09.2016. As
per the averment of petitioner in his affidavit, he left India on
10.10.2016. Thus, even before judgment debtor left India,
decree was passed on 07.09.2016. The material on record
would indicate that Guntakal I Town limits issued verification
certificate on 24.09.2016 and hence, the contention of
petitioner that he was in Kuwait on 04.09.2016 is a blatant
lie. The executing Court considered all these aspects and
dismissed the application.
9. As can be seen from E.A. filed by the judgment debtor,
it was filed under Rules 89, 90 and 106 of Order XXI of CPC.
If the application is to be treated as one under Rule 89, the
judgment debtor must deposit 5% of the purchase money and
also sale amount within 60 days under Article 127 of the
Limitation Act. However, no such amount was deposited.
Apart from that petition was filed after 60 days. The affidavit
filed in court below doesn't indicate the grounds to set aside
the sale as enumerated under Rule 90 of Order 21.
10. It is pertinent to mention that mother of judgment
debtor filed application much prior to 30.09.2019 to set aside
the sale under Order 21 Rule 90 CPC. Thus, the judgment
debtor cannot contend that he is not aware of the
proceedings. This Court granted stay of the proceedings on
condition of deposit of 50% of the decretal amount in this
revision, the said order was not complied with. Learned
counsel for respondent also brought to the notice of this
Court that sale certificate was issued by confirming sale.
11. A perusal of the order passed by the Court below would
disclose that the executing Court considered all the aspects
in detail and dismissed the application by recording reasons.
The order of the executing Court is neither perverse nor
amounts to failure to exercise jurisdiction vested with it.
Hence, the order of the trial Court dismissing the petition
does not call for interference of this Court under Article 227
of the Constitution of India.
12. Accordingly, the Civil Revision Petition is dismissed at
the admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
_________________________
SUBBA REDDY SATTI, J
22nd November, 2022
PVD
