Andhra Pradesh High Court - Amravati
Athuluri Ananda Naidu, Chittoor ... vs Thathuru Venkateswarlu, Nellore ... on 4 September, 2023
Bench: K Manmadha Rao
1
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.R.P.No.3535 of 2017
ORDER:
Aggrieved by the orders dated 17.06.2017 passed in E.P.No.
10 of 2010 and E.A.No.28 of 2014 in O.S.No.12 of 2005 on the file
of the Court of IV Additional District Judge, Tirupati, the present
revision is filed.
2. The petitioner herein is the 2nd Decree Holder (in short
'the D.Hr'); 1st respondent herein is the Judgment Debtor (in short
'the J.Dr') and 2nd respondent is the 1st Decree Holder before the
court below.
3. Initially the Decree Holders i.e petitioner and 2nd
respondent herein have filed the Execution Petition under order
21, rule 34(2) of C.P.C against the 1st respondent herein to execute
a registered regular sale deed in terms of decree in the above suit,
in default of compliance, to execute the sale deed in favour of 2nd
respondent herein by Court. The Court below after hearing on both
sides has dismissed the applications in E.P.No.10 of 2010 and
E.A.No.28 of 2010. Aggrieved by the same, the present revision
came to be filed.
4. Heard Mr. A. Chandraiah Naidu, learned counsel for the
petitioner and none appears for the respondents.
5. Learned counsel for the petitioner would contend that the
court below failed to appreciate that at the instance of elders the
J.Dr and 2nd D.Hr entered into an agreement by stipulating some
terms agreeing to pay Rs. 10,50,000/- more than the agreed
amount on a condition that the J.Dr agreed to execute the sale
deed on 31.03.2014 and he shall withdraw the Appeal within one
month. Further the court below failed to appreciate that the
petitioner already paid Rs. 10,00,000/- to the J.Dr on 31.03.2014
and Rs. 1,500/- on 30.06.2014, the rest of the balance amount is
Rs. 2,73,500/- and he sought permission by filing E.A.No.28 of
2014 to deposit the remaining balance amount into the Court.
Further the court below has not given any proper reasons while
dismissing the applications and hence the same is liable to be set
aside.
6. The J.Dr i.e 1st respondent herein has filed counter before
the court below and mainly contended that as per the orders of
this Court in ASMP No.548 of 2012 in A.S.No.717 of 2010, dated
27.07.2012 permitted the 1st D.Hr to withdraw Rs. 12,75,000/-
from the court deposit with a direction to redeposit the amount
within one month from the date of disposal of the appeal. But
contrary to the said orders of this Court, the 2nd D.Hr withdrawn
the amount from the court deposit. At the request of 1st D.Hr and
2nd D.Hr the ASMP No.438 of 2012 in A.S.No.717 of 2010 was
withdrawn by the J.Dr on 02.07.2014. But the 2nd D.Hr did not
bring the said fact to the knowledge of the court below. Neither the
assignee of the decree i.e 2nd D.Hr nor 1st D.Hr has deposited the
amount into the court. Therefore there is sheer violation
committed by them and disobeyed the orders of this Court. Thus,
the agreement of sale is barred by limitation and hence the 2nd
D.Hr is not entitled for specific performance of agreement of
contract as alleged by him. In view of separate agreement of sale
entered into by the 2nd D.Hr with the J.Dr ignoring the decree in
the above E.P makes it infructuous, hence the E.P is liable to be
dismissed.
7. During hearing learned counsel for the petitioner would
contend that the D.Hr filed O.E.P.No.10 of 2010 in O.S.No.12 of
2005 for execution of the decree by depositing the balance of sale
consideration of Rs. 12,75,000/-. The J.Dr filed A.S.No.717 of
2010 and obtained stay on 08.10.2010. On 03.03.2011 a deed of
assignment of decree was executed on 29.04.2010 between D.Hr in
favour of 2nd D.Hr. Subsequently the 1st D.Hr withdrawn the sale
consideration of Rs. 12,75,000/- as per the orders in
A.S.M.P.No.548 of 2012 in A.S.No.717 of 2010 on condition that
the D.Hr shall redeposit the said amount within one month from
the date of disposal of the appeal in case the sale goes in his
favour.
8. It is further contended that on 25.12.2013 the 2nd D.Hr
and J.Dr have entered into another agreement, wherein the
appellant shall withdraw the appeal within one month and 2nd
D.Hr has to pay an additional amount of Rs. 10,50,000/- to the
J.Dr. Over and the above balance of sale consideration of Rs.
12,75,000/- i.e D.Hr has to pay Rs. 23,25,000/-and the J.Dr
agreed to execute the sale deed on receipt of the said amount on
31.03.2014 and on that day, the J.Dr received an amount of Rs.
10,00,000/- and handed over the sale deed dated 20.06.1996. But
as per condition of the said deed of agreement dated 25.12.2013,
the J.Dr failed to withdraw the appeal till 25.12.2013 as the time
for paying the remaining amount i.e Rs. 13,25,000/- was expiring
time was extended till 30.06.2014. Further the J.Dr did not get
withdraw A.S.No.717 of 2010, time was extended at his request
therefore an amount of Rs. 1,500/- has been paid and the time
was extended till 31.07.2014.
9. It is further contended that both the counsels before the
court below represented that the matter was settled and 2nd D.Hr
has to pay only Rs. 2,75,000/- as per the original agreement and
the J.Dr is ready to accept the same and execute the sale deed,
but E.P.No.10 of 2010 was dismissed on 17.06.2017 on the file of
IV Additional District Judge, Tirupati. Therefore the present
Revision came to be filed.
10. In support of his contention, learned counsel for the
petitioner filed Chronology of events/ statement across the bench
and contended that the petitioner has to pay interest on Rs.
2,75,000/- at the rate of 7% p.a from 27.07.2012, which would be
Rs. 3,68,500/- totaling Rs. 6,43,500/- (Rs. 2,75,000/- +
3,68,500/-). The petitioner is ready and willing to deposit the same
within three months and seeks time to enforce the above decree.
Therefore he requested to pass appropriate orders in this revision.
11. Considering the submissions of learned counsel for the
petitioner, this Court is inclined to dispose of the revision, with a
direction to deposit the balance amount i.e Rs. 6,43,500/- before
the court below to enforce the decree, within three (03) months
from the date of receipt of a copy of this order.
12. With the above direction, the C.R.P is disposed of, while
setting aside the orders dated 17.06.2017 passed in E.P.No. 10 of
2010 and E.A.No.28 of 2014 in O.S.No.12 of 2005 on the file of the
Court of IV Additional District Judge, Tirupati. There shall be no
order as to costs.
___________________________________
DR.JUSTICE K. MANMADHA RAO
Date: 04.09.2023.
KK
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.R.P.No.3535 of 2017
Date 04.09.2023.
KK
