Andhra Pradesh High Court - Amravati
Smt. Katari Nukaratnam vs Mulki Satya Veni on 2 January, 2023
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1468 2022
Katari Nukaratnam, W/o Chakradhar Rao, aged 45 years,
Housewife, R/o Komaragiri Village, U Kothapalli Mandal,
Peddapuram.
... Petitioner
Versus
Mulki Satya Veni, W/o Nagasuri, aged 36 years, Cultivation,
Vommangi, Prathipadu Mandal, Peddapuram and another.
... Respondents
Counsel for the petitioner : Sri E.V.V.S. Ravi Kumar
Counsel for respondents : ---
ORDER
Respondent in regular appeal filed the above civil revision
petitions under Article 227 of the Constitution of India against
order, dated 09.05.2022 in I.A.No.337 of 2019 in A.S.No.73 of
2018 on the file of learned VII Additional District Judge,
Peddapuram.
2. Parties shall be referred to as they are arrayed in
O.S.No.132 of 2011.
3. Respondent being plaintiff filed O.S.No.132 of 2011
against the defendants (appellants in appeal suit), seeking
permanent injunction. The suit was decreed on contest by
judgment and decree, dated 04.09.2017. Against judgment and
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decree of the trial Court, defendants preferred A.S.No.73 of
2018.
4. Pending the appeal, plaintiff filed E.P.No.1 of 2019 under
Order XXI Rule 32 of CPC to commit defendant No.2 to civil
prison. At that junction I.A.No.347 of 2019 was filed under
Order XLI Rule 5 read with Section 151 of CPC to stay all
further proceedings in E.P.No.1 of 2019 in O.S.No.132 of 2011
on the file of learned Senior Civil Judge, Peddapuram, pending
disposal of the appeal.
5. Plaintiff filed counter and opposed the said application.
6. Lower appellate Court by order, dated 09.05.2022 allowed
I.A.No.347 of 2019 and granted stay of all further proceedings in
E.P.No.1 of 2019 in O.S.No.132 of 2011 on the file of learned
Senior Civil Judge, Peddapuram, pending disposal of the appeal.
Aggrieved by the same, the above revision is filed.
7. While ordering notice, Court permitted counsel for the
petitioner to take out personal notice. In pursuance of order of
this Court, learned counsel for the petitioner/plaintiff has taken
out personal notice on the respondents/defendants and filed
proof of service. As per memo filed by learned counsel for the
petitioner/plaintiff before this Court, defendants refused to
receive notice. Therefore, this Court ordered notice to learned
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CRP No.1468 of 2022
counsel appearing for the defendants in the Court below. In
compliance of said order notice was served and proof of service
is filed vide USR No.12 of 2022. Hence, service is properly
affected against the respondents.
8. Learned counsel for the petitioner/plaintiff would submit
that as defendants violated decree of the trial Court in
O.S.No.132 of 2014, plaintiff filed E.P.No.1 of 2019 and
subsequent to filing of said E.P., defendants filed I.A.No.347 of
2019 seeking stay of proceedings in E.P.No.1 of 2019 and the
same was allowed. He would submit that without seeking
suspension of injunction granted in favour of the plaintiff,
defendants sought for stay of all further proceedings in E.P.No.1
of 2019 and the same is not maintainable. Hence, the order
under revision is liable to be set aside.
9. Suit O.S.No.132 of 2014 filed by the plaintiff seeking
perpetual injunction against the defendants was decreed on
contest. Against the judgment and decree of the trial Court,
defendants preferred A.S.No.73 of 2018. Initially, no application
was filed seeking suspension of the injunction granted in the
suit. However, when E.P.No.1 of 2019 was filed under Order XXI
Rule 32 of CPC seeking arrest of defendant No.2, I.A.No.347 of
2019 was filed seeking stay of all further proceedings in
E.P.No.1 of 2019.
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10. The lower appellate Court, on consideration of material
available on record, eventually granted stay of all further
proceedings in E.P.No.1 of 2019. Merely because application is
not filed seeking suspension of the decree it does not mean that
defendants are restrained from making application seeking stay
of all further proceedings in E.P.No.1 of 2019, when E.P. is filed.
In fact, decree for injunction is executable under Order XXI Rule
32 of CPC.
11. In Muddana Subba Reddy, vs. Muddana Kullayi
Reddy1, it was held as under:
"As can be seen from the facts of the case, this is a
matter where the revision petitioner as plaintiff in
O.S.No.61 of 2002 on the file of the Junior Civil Judge,
Jammalamadugu, obtained a decree for perpetual
injunction and also mandatory injunction. The reasons in
detail had been recorded by the learned Judge while
granting stay of operation of the decree. In view of Order
41, Rule 5 read with Order 21 Rule 32(1) of CPC, the
decree for perpetual injunction is an executable decree
and hence, the same can be stayed. The said view was
expressed in M. Ramachandra Reddy v. Challa Janaki
and Ors. 1984(1) ALT 387. It is true that in Pothuru
Venkata Rama Raju v. Yandra Venkata Narasayya and
Ors., another learned Judge of this Court came to the
conclusion that a decree for perpetual injunction is not
executable and hence, the same cannot be stayed under
2006 (1) ALT 18
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Order 41 Rule 5 of CPC, but, it can be suspended
depending upon the circumstances. In the light of the
view expressed in Moolchand Yadav v. Raza Buland
Sugar Company Limited, Rampur and Ors. and the view
expressed in M. Ramachandra Reddy v. Challa Janaki
and Ors. (supra) and also referring to the view in Pothuru
Venkata Rama Raju v. Yandra Venkata Narasayya and
Ors.(Supra), yet another learned Judge of this Court in
Harichandra Prasad v. Aturi Venkatanarayna 2002 (1)
An.W.R. 397 (A.P.) arrived at a conclusion that where it is
an order having serious consequences, the same can be
stayed in exercise of discretion and it being a
discretionary olrder, unless, the same is illegal or
impermissible, it needs no disturbance at the hands of
the revisional Court. In view of the same, there cannot be
any controversy whatsoever that in the light of the
language of Order 41 Rule 5(1) of CPC read with Order 21
Rule 32(1) of CPC, depending upon the facts and
circumstances, stay of execution of a decree of perpetual
injunction also can be granted. It is needless to say that
when the learned Judge exercised the discretion in a
particular way, the revisional Court should be slow in
disturbing the said order, unless any illegality or serious
legal infirmities had been pointed out. In the present
case, apart from the fact that a decree for perpetual
injunction had been granted, yet another relief of
mandatory injunction also had been granted, which is an
additional factor."
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12. The fact that remains is a decree for injunction is
executable one and in fact plaintiff filed E.P.No.1 of 2019
pending the appeal. If the decree is allowed to be executed the
purpose of filing appeal would be defeated. The lower appellate
Court being final factfinding Court having considered legal
aspects and evidence on record allowed I.A.No.347 of 2019. In
the considered opinion of this Court, the order of the trial Court
does not suffer from any infirmity, which warrants interference
of this Court.
13. However, as the appeal is of the year, 2018, the appellate
Court shall dispose of the appeal as expeditiously as possible,
keeping in view the circular issued by High Court of Andhra
Pradesh vide R.O.C.No. 560/OP/CELL/2022 dated 23.11.2022,
preferably within four months from the date of receipt of a copy
of this order.
With the above direction, this Civil Revision Petition is
dismissed. No costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
__________________________
SUBBA REDDY SATTI, J
Date : 02.01.2023
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CRP No.1468 of 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1468 of 2022
Date: 02.01.2023
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