Andhra Pradesh High Court - Amravati
Rs.28 vs Unknown on 13 July, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.6277 of 2018
and
CIVIL REVISION PETITION No.6397 of 2018
COMMON ORDER:
Since both Civil Revision Petitions are between the same
parties and orders impugned therein are from the same Court
and as they are heard together, they are now to be disposed of
by this common order.
2. O.S.No.9 of 2017 is a suit filed for recovery of
Rs.28,43,534/- filed by plaintiff as against two defendants. The
plaint was presented on 07.04.2017. Defendants made their
appearance and they were to file their written statement on
18.09.2017. They failed to file the written statement and the
proceedings went ex parte and the learned trial Court decreed
the suit ex parte by its judgment dated 20.11.2017. Nine days
thereafter it was on 29.11.2017 the defendants moved an
application under Order IX Rule 13 C.P.C. requesting the
learned trial Court to set aside the ex parte decree. Plaintiff was
notified of it and he did not choose to file any counter. After
enquiring into the matter, by an order dated 05.10.2018 the
learned trial Court allowed that application in I.A.No.51 of 2018
2
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
in O.S.No.9 of 2017 and set aside the ex parte decree but
subject to fulfillment of two conditions. It directed the
defendants to deposit suit costs and also directed the
defendants to deposit Rs.1,000/- to District Legal Services
Authority. It granted time till 31.10.2018 for complying with the
conditions. It stated that failure to fulfill the conditions would
result in automatic dismissal of the application. It is in
challenge to that, the winning parties/defendants preferred
C.R.P.No.6397 of 2018 invoking the powers of this Court under
Article 227 of the Constitution of India stating that learned trial
Court ought not to have directed them to deposit the suit costs
since within the prescribed time itself they moved the
application and after keeping it pending for 10 months the
learned trial Court passed such an order containing onerous
conditions and therefore, the same shall be set aside.
3. As seen earlier, the learned trial Court decreed O.S.No.9
of 2017 on 20.11.2017. The winning plaintiff as decree holder
filed E.P.No.1 of 2018 on 29.01.2018 and the said execution
petition was filed under Order XXI Rule 37 read with Section
151 C.P.C. and the execution was levied as against defendant
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Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
No.1/J.Dr. No.1 seeking for his arrest and detention in civil
prison. Having received notices, J.Dr. No.1/defendant No.1
made his appearance and filed a counter wherein he informed
the executing Court that his application for setting aside
ex parte decree is pending and without a decision in it
proceeding further with execution is incorrect and therefore,
sought for dismissal of the execution petition. It is then the
learned executing Court passed the impugned order on
04.10.2018. The order is extracted here:
"PW.1 filed chief affidavit and called present. PW.1
is a decree holder. Decree holder filed E.P. U/O.21 R.37
CPC seeking arrest of J.Dr.No.1 for recovery of amount in
pursuance of decree in O.S.9/17 dated 20.11.17 on the file
of II Addl. District Judge, Kurnool at Adoni. J.Dr. No.1
filed a counter, inter alia contended that the suit filed by
the decree holder decreed ex parte on 20.11.17 and the
J.Dr. filed a petition to set aside the decree and same is
pending. It is further contended that the J.Dr has got
sufficient ground to succeed in the suit. Having carefully
gone through the contents of J.Dr. No.1 shows there is no
grounds to challenge the EP. On the other hand, the
grounds mentioned in the counter relating to suit
transactions. The present petition is execution petition and
the time sought by J.Dr. counsel is refused. Accordingly,
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Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
issue arrest warrant against J.Dr. No.1 on payment of
process. Call on 30.11.2018."
4. It is in challenge to that, judgment debtor No.1 preferred
C.R.P.No.6277 of 2018 under Section 115 C.P.C. contending
that the impugned order is invalid and against law as it failed to
advert to economic condition of judgment debtor No.1 and as it
failed to consider pendency of application to set aside the ex
parte decree and as it failed to reach to conclusion based on any
evidence.
5. Sri K.V.Raghuveer, learned counsel appearing for revision
petitioners in both the cases submitted arguments.
6. Sri G.Ramachandhra Reddy, learned counsel appearing
for respondent submitted arguments in support of the orders
impugned in both the revisions.
7. Having considered the material on record and having
considered the submissions of learned counsel on both sides, it
is to be stated that it is the Court of learned II Additional
District Judge, Adoni where O.S.No.9 of 2017 was disposed of
by way of an ex parte decree and it is before the same Court
execution petition was filed seeking for arrest of judgment
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
debtor No.1. The fact that a petition to set aside the ex parte
decree is pending is brought to the notice of the learned
II Additional District Judge during the course of enquiry in the
execution petition. Since it is before the same Court such an
application is pending, it is normally expected that the Court
would restrain itself from proceeding with execution of the
decree and would first consider the application filed for setting
aside the ex parte decree. Instead of doing it, the learned
II Additional District Judge went ahead with execution. In the
opinion of this Court taking up proceedings in that manner is
impropriety on part of the Court. In the execution, decree
holder was seeking for arrest and detention of judgment debtor
No.1. Among several principles one important principle that is
to be borne in mind is what is provided by Section 51 of Code of
Civil Procedure. It mandates that the executing Court has got a
duty to see whether judgment debtor No.1 has means to pay the
amount of decree or some substantial part thereof and whether
he was refusing or neglecting to pay the said amounts. The
impugned order passed by the executing Court was already
extracted in the earlier paragraphs of this order. It is at once
clear that the said order does not have any reflection on the
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
principles referred above and any relevant findings on facts
relevant for those principles of law. It failed to conduct any
means enquiry. It mentions that chief examination affidavit of
PW.1/D.Hr. was filed. It does not even show whether the
witness was tendered for cross-examination or not. It simply
brushed aside the contention of judgment debtor No.1 that his
application for setting aside ex parte decree stating that the
same is no ground to answer for arrest and detention prayer
made by the decree holder. Thus, the impugned order dated
04.10.2018 in E.P.No.1 of 2018 in O.S.No.9 of 2017 is against
law and cannot be sustained. In fact learned counsel for
respondent/plaintiff very fairly concedes the illegality involved
in the impugned order of the learned executing Court.
Therefore, C.R.P.No.6277 of 2018 has to be allowed.
8. Coming to C.R.P.No.6397 of 2018, the impugned order
granted relief to the revision petitioners. The only contention
raised is that it ought not to have directed them to deposit suit
costs. Learned counsel for revision petitioners cited
V.K. Industries v. M.P. Electricity Board, Rampur,
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
Jabalpur1. In that case, their Lordships have held that while
restoring a case, the Court may impose conditions to deposit
costs or the decretal amount or some portion thereof or to ask
the defendant to give security. Their Lordships have laid down
the ratio stating that whichever condition is imposed the
condition should be reasonable and it shall not be harsh or
excessive.
9. Learned counsel for respondent cited V.Suresh Reddy v.
D.Venkateswara Reddy2. While dealing with a similar matter,
a learned Single Judge of this Court, while referring to
G.P.Srivastava v. R.K.Raizada3 and Vijay Kumar Madan v.
R.N.Gupta Technical Education Society4, reiterated the same
principles that are laid down in the earlier referred rulings of the
Hon'ble Supreme Court of India.
10. Thus, the law as enunciated by the Courts is clear that
while setting aside ex parte decree a condition could be imposed
and such condition should not be harsh or excessive. The
(2002) 3 SCC 159
2023 (1) ALD 310 (AP)
(2000) 3 SCC 54
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
Courts have been holding that what is harsh and excessive is
always depending on the totality of facts and circumstances and
the nature of the litigation that is there. In the case at hand, it
was a suit for recovery of a large amount of money of
Rs.28,43,534/-. Having found a justified reason for setting
aside the ex parte decree, the learned trial Court set aside the
ex parte decree. Since Order IX Rule 13 C.P.C. empowers the
Court to set aside ex parte decree upon such terms as to costs,
the learned trial Court directed the defendants to deposit suit
costs. Be it noted, it did not direct the defendants to deposit
any part of the decretal amount. Thus, the most minimum was
granted by the learned trial Court. Looking at the nature of the
litigation that is available between parties, order of the trial
Court in directing the defendants to deposit suit costs appears
quite normal and at any rate, it cannot be said that it is a harsh
or onerous condition. Therefore, there is no substance in this
revision and hence, C.R.P.No.6397 of 2018 has to be dismissed.
(2002) 5 SCC 30
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
11. In the result, C.R.P.No.6277 of 2018 is allowed. The
impugned order dated 04.10.2018 in E.P.No.1 of 2018 in
O.S.No.9 of 2017 on the file of learned II Additional District
Judge, Adoni is set aside. C.R.P.No.6397 of 2018 is dismissed.
Revision petitioners are granted time till 31.08.2023 to comply
with the deposits that were ordered by the learned II Additional
District Judge, Adoni by his order dated 05.10.2018 in
I.A.No.51 of 2018 in O.S.No.9 of 2017. There shall be no order
as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_____________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 13.07.2023
Ivd
Dr. VRKS, J
C.R.P.No.6277 of 2018
&
C.R.P.No.6397 of 2018
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.6277 of 2018
and
CIVIL REVISION PETITION No.6397 of 2018
Date: 13.07.2023
Ivd
