Munaga Venkateswarlu vs Yerava Tirupathi Reddy
2023 Latest Caselaw 4695 AP

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                                                                    CMR, J.
                                                         CRP No.2456 of 2023



 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

               Civil Revision Petition No.2456 of 2023

ORDER:

Heard learned counsel for the petitioner.

2) The petitioner is the defendant in O.S.No.467 of 2019 on the

file of the Principal Junior Civil Judge, Tenali. Suit for recovery of

money on the basis of a registered mortgage deed was filed against

him. It was decreed and a preliminary decree was passed.

Thereafter, a final decree was also passed. The plaintiff has filed

E.P.No.130 of 2022 for execution of the said final decree. The

property was brought to sale and it was sold. The sale is yet to be

confirmed as required under law.

3) At that stage, the petitioner being the judgment debtor has

filed a petition under Order 34 Rule 5 CPC seeking permission of

the Court to deposit the entire decretal amount along with the

poundage in the Court. The said petition was returned by the

executing Court and refused to entertain the same. It was not

even numbered. It was returned by the impugned endorsement

stating as to how the petition is maintainable seeking permission

to pay the E.P. amount in the Court as a petition under Order 21

Rule 89 CPC is pending. Though the petitioner has resubmitted

the said petition after answering the said objection stating that the

CMR, J.

CRP No.2456 of 2023

petitioner is entitled to deposit the money in exercise of his right

conferred under Order 34 Rule 5 CPC, still the executing Court is

not satisfied with the same and again returned the said petition.

4) Therefore, aggrieved by the same, this Civil Revision Petition

is preferred.

5) A bare perusal of Order 34 Rule 5(1) CPC makes it manifest

that on or before the day fixed or at any time before the

confirmation of a sale made in pursuance of a final decree passed

under sub-rule (3) of Rule 5 of Order 34, that the defendant can

make payment into Court of all amounts due from him under sub-

rule (1) of Rule 4, and the Court shall, on application made by the

defendant in this behalf, pass a final decree or, if such decree has

been passed, an order ordering the plaintiff to deliver up the

documents referred to in the preliminary decree.

6) Therefore, when the petitioner being the defendant is now

ready to deposit the amount payable to the plaintiff in the Court

and filed a petition under Order 34 Rule 5 CPC, the Court below

ought to have registered it and ought to have heard the petitioner

and pass appropriate orders on it. The impugned return

endorsement is, therefore, clearly unsustainable under law.

CMR, J.

CRP No.2456 of 2023

7) Therefore, the Civil Revision Petition is allowed. The

executing Court is directed to register the said petition filed under

Order 34 Rule 5 CPC, if it is otherwise in order and hear the

petitioner and the respondent therein and pass appropriate orders

on it according to law. No costs.

Consequently, miscellaneous applications, pending if any,

shall stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:05.10.2023.

Note:

Issue C.C. by tomorrow.

B/O cs