Andhra Pradesh High Court - Amravati

Yadlapalli Hanumantha Rao vs Palasala Nageswara Rao on 24 January, 2024

Author: K. Sreenivasa Reddy

Bench: K. Sreenivasa Reddy

          HON'BLE SRI JUSTICE K. SREENIVASA REDDY

        Civil Revision Petition Nos.1627 and 1652 of 2022

Common Order:

Since the issue involved in both the Civil Revision Petitions is

one and the same, they are being disposed of by this common order.

2. The present Civil Revision Petitions have been filed against the

common order dated 24.03.2022 passed in IA Nos.801 and 802 of

2019 in OS No.155 of 2018 by the learned Senior Civil Judge,

Avanigadda.

3. The petitioner herein is the plaintiff and respondent herein is the

defendant in the above suit. For the sake of convenience, the parties

are hereinafter referred to as they are arrayed in the suit.

4. The plaintiff filed the suit in OS No.155 of 2018 on the file of

the learned Senior Civil Judge, Avanigadda against the defendant for

recovery of a sum of Rs.9,10,800/- due under three suit promissory

notes with subsequent interest at 12% p.a., from the date of suit till

realization. Since the defendant was not present, he was set ex parte

and an ex parte decree was passed in the said suit on 23.04.2019.

Thereafter, the present IAs were filed by the defendant seeking to set

aside the said ex parte decree by condoning the delay of 120 days in

filing the set aside petition.

SRK, J

5. The defendant stated in his affidavit filed in support of the

petition that he did not receive any notice or summons in the suit and

the plaintiff gave wrong door number purposefully, managed the postal

authorities and obtained ex parte decree behind his back in order to

harass him. He further stated that on receipt of notice in EP

proceedings, he came to know about the suit proceedings.

6. A counter came to be filed in the IAs stating that the defendant

got ample knowledge about the suit proceedings and on every

occasion, the plaintiff informed the defendant over phone and

requested for discharge of the debt, but the defendant intentionally

avoided the same. As the defendant evaded to receive the suit

summons, the Court ordered substituted service and accordingly the

same was published in Andhra Prabha Krishna district edition. The suit

underwent several adjournments and finally decreed on 23.04.2019. It

is further stated that pursuant to passing of decree, the plaintiff filed

EP No.125 of 2019 and when the said EP reached the stage of sale of

immovable property of the defendant, he filed the present IAs only

with a view to defeat the entire EP proceedings.

7. By a common order dated 24.03.2022, the learned Senior Civil

Judge, Avanigadda, allowed the said IAs subject to payment of costs of

Rs.500/-. Aggrieved by the same, the present CRPs have been filed.

8. Heard both sides.

SRK, J

9. Learned counsel appearing on behalf of the petitioner

herein/plaintiff submits that no reasons are given by the learned Senior

Civil Judge for allowing the IAs in order to condone the inordinate

delay of 120 days in filing the set aside petition and the learned Judge

failed to appreciate the law in proper perspective.

10. Admittedly, the suit underwent several adjournments from time

to time and later an ex parte decree was passed on 23.04.2019. As

suit summons was not served on the defendant, the plaintiff has taken

steps for publishing the same in a daily Newspaper i.e., "Andhra

Prabha" Krishna district edition. It goes without saying that the

plaintiff would have informed the defendant with regard to filing of suit

and for payment of money to him. Despite the same, the defendant

has kept quiet and slept over for years and when the EP proceedings

were initiated and when it reached the stage of sale of his immovable

property, he filed the present IAs with a delay of 120 days without

explaining any reasons for such delay, except stating that no notice or

suit summons were served on him. Article 123 of the Limitation Act

specifies that time begins to run from the date of decree or where the

summons or notice was not duly served, when the applicant had

knowledge of the decree.

11. Learned counsel for the petitioner herein/plaintiff has relied

upon a decision reported in V.K. Industries v. M.P. Electricity SRK, J

Board, Rampur, Jabalpur (Appeal (Civil) No.1778 of 2002,

dated 01.03.2022), wherein the Hon'ble Supreme Court observed

thus.

"This appeal is by the defendants in the suit filed for recovery of Rs. 3,84,455.44 with future interest @ 24% per annum from the date of filing of the suit till realization of the amount. Suit summons were not personally served on the defendants. However, the trial court, on the basis of newspaper publication, held that service of summons on defendants was sufficient. In the absence of the defendants, the suit was decreed ex parte as prayed for by the plaintiff. On coming to know the ex parte decree, passed against them, the defendants filed a petition under Order IX Rule 13 of the Code of Civil Procedure. The trial court dismissed the said petition. Aggrieved by the same, the defendants filed Miscellaneous Appeal before the High Court.

The High Court allowed the Miscellaneous Appeal and set aside the ex-parte decree subject to the terms (i) the defendants shall, within a period of two months, deposit a sum of Rs.2,00,000/- with the trial court, (ii) shall furnish bank guarantee for the remaining sum claimed in the suit within the said period of two months and (iii) the amount so deposited shall be liable to be disbursed in accordance with the final order that may be passed in the suit. It is to be noted that the plaintiff has not challenged the order setting aside ex parte decree.

SRK, J

The only grievance of the appellants is that the terms, upon which ex parte decree is set aside, are onerous and not reasonable. On behalf of the respondents submission was made supporting the said terms as justified.

Ordinarily, a money decree is not stayed unconditionally and the judgment-debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex parte decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution. It is no doubt true that in 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 but such conditions should be reasonable and not harshly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits.

On 29.10.2001, the learned counsel for the appellants stated that within two weeks, a sum of Rs. 50,000/- shall be deposited in the trial court and notice was issued on that day. During the course of hearing the learned counsel informed that a sum of Rs. 50,000/- is already deposited in the trial court.

SRK, J

We are of the view that it would be just and appropriate to direct the appellants to deposit a further sum of Rs.50,000/- in the trial court within a period of four weeks from today. The terms to deposit Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim shall stand modified as indicated above. The impugned order shall remain undisturbed in all other respects.