Andhra Pradesh High Court - Amravati
Vadlapoodi Venkata Suresh Babu vs $ Gadamsetty Kiran Kumar & 3 Others on 19 November, 2024
* THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
C.R.P.No.1180 of 2020
% 20.11.2024
# Vadlapoodi Venkata Suresh Babu .... Petitioner
Versus
$ Gadamsetty Kiran Kumar & 3 Others ... Respondents
! Counsel for the Petitioner : Sri P. Sridhar Reddy
! Counsel for the Respondents : Sri Sai Gangadhar Chamarty
< Gist:
> Head Note:
? Cases referred:
1
Nil
2
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
C.R.P.No.1180 of 2020
% 20.11.2024
# Vadlapoodi Venkata Suresh Babu .... Petitioner
Versus
$ Gadamsetty Kiran Kumar & 3 Others ... Respondents
DATE OF ORDER PRONOUNCED: 20.11.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local Newspapers may
be allowed to see the Order? Yes/No
2. Whether the copies of Order may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordship wish to see the Fair
Copy of the Order? Yes/No
________________
NYAPATHY VIJAY, J
3
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION No.1180 of 2020
ORDER:
1. The present Civil Revision Petition is filed questioning the Order dated
21.10.2020 in I.A.No.121 of 2020 in O.S.No.14 of 2014 in C.F.No.1569
of 2019 passed by the I Additional District Judge, Nellore, SPSR Nellore
District.
2. The Petitioners are the Defendants. The suit O.S.No.14 of 2014 was
filed by the Respondent/Plaintiff for recovery of money on the basis of the
Mortgage Deed said to have been executed by the Petitioners/Defendants.
A preliminary decree was passed ex parte on 23.01.2017.
3. While so, the Petitioners/Defendants filed I.A.No.121 of 2020 seeking
to set-aside the ex parte decree under Order 9, Rule 13 CPC, wherein the
reason given by the Petitioners/Defendants was that though they had
engaged an Advocate, they could not file their Written Statement due to the
illness of Petitioner No.3. Due to illness and old age related ailments,
the Petitioner No.3 had to shift her family to Kaza Village of Guntur District
for treatment. It was only when their Advocate informed about the suit being
decreed ex parte, the present application was filed to set-aside the ex parte
decree and this application was returned by the trial Court, as to how the
petition is maintainable, since the suit was disposed of on contest.
4. As the trial Court was not taking up the applications filed by the
Petitioners, A Civil Revision Petition No.282 of 2020 was filed before this
Court complaining that the trial Court was not taking up the applications and
only adjourning them from time to time. This Court directed the trial Court to
consider the applications of the Petitioners/Defendants and pass orders on
the maintainability of the applications within a period of three (3) weeks from
the date of receipt of copy of the order vide Order dated 27.08.2020.
5. The trial Court taking into consideration the reasons given by the
Petitioners/Defendants, allowed the I.A subject to filing of the Written
Statement by the Defendant Nos.2 to 4 and to deposit suit costs and also on
payment of Rs.1,000/- to the Respondent/Plaintiff on or before 09.11.2020,
failing which the petition stands dismissed.
6. The present Revision is filed questioning the condition to deposit suit
costs. After filing the present Revision, it is submitted by both the counsel
that a final decree was passed on 01.07.2024.
7. Heard Sri P.Sridhar Reddy, learned counsel for the Petitioners and
Sri Sai Gangadhar Chamarty, learned counsel for the Respondent.
8. In the course of arguments, it was submitted by both the counsel that
as the condition imposed in the impugned order was not complied by the
Petitioners/Defendants, a final decree was passed on 01.07.2024 by the trial
Court. The counsel for the Petitioners contended that the final decree should
be set-aside, as a consequence, in the event this Court sets aside the
condition imposed by the trial Court. The condition to deposit suit costs is
erroneous and considering the precarious financial condition of the
Petitioners, the same is onerous.
9. The counsel for the Respondent contended that the condition imposed
by the trial Court to deposit suit costs is well within its discretion and some
bona fides need to be established by the Petitioners/Defendants to contest
the case. The counsel for the Respondent further contended that no further
orders can be passed in this Revision, as the same has been rendered
infructuous, since the final decree was passed by the trial Court. It is his
contention that the preliminary decree stood merged with the final decree
and no cause survives for setting aside the same.
10. Having heard the respective counsel, the following issues arise for
consideration:-
a) Whether the condition to deposit the suit costs in a mortgage suit is
onerous and liable to be set-aside?
b) What is the impact of the passing of final decree by the trial Court
on 01.07.2024 on this Revision?
11. Issue (a): The suit being mortgage suit, the amounts due to the
Plaintiff are secure and once the trial Court exercised its discretion to set-
aside the ex parte decree having found some merit in the claim of the
Petitioners/Defendants, ought not to have imposed a condition of depositing
suit costs. The suit costs in this case are Rs.2,63,357/-. The suit costs are
generally granted when the orders are passed on merits, as the legal fees
incurred by the Plaintiff. The costs granted by the trial Court form part of the
preliminary decree. Once the preliminary decree is set-aside, it is
contradictory to impose costs, which is a part of the decree as a condition
precedent to set-aside the ex parte decree.
12. The other scenario would be that even if the preliminary decree is
passed on merits subsequently, then also costs will be imposed by the trial
Court. In effect, for one preliminary decree, the Petitioner may have to pay
costs twice and that would be onerous and unjust. This issue is accordingly
answered.
13. Issue (b): The effect of passing of the final decree does not render
this revision infructous as contended by the Respondent. If it is held that the
preliminary decree merged in the final decree and no cause survives for
adjudication in this Revision, that would amount to validating the onerous
condition imposed while setting aside the ex parte decree.
14. The final decree passed can only be termed to be a 'dependent order'
and it is dependent on the outcome of this Revision. In Varadarajan v.
Muthu Venkata Pathi Reddy1, the application of the petitioner therein under
Order 21 Rule 90 to set-aside sale was dismissed for default and sale was
confirmed in favour of third party. The application to set-aside the default
order was rejected by the trial Court and the High Court of Madras allowed
the same on condition. Then an application was filed to vacate the
confirmation of sale, and the said application was dismissed. In that context,
the Judgment of Privy Council in Shama Purshad Roy Chowdhry v. Hurro
Purshad2 was referred to set aside the sale confirmation. The relevant
portion of the Judgment at paragraph is extracted below:-
"The principle under which it could be said that by reason of
the restoration of a petition for setting aside the sale, the
confirmation made earlier would stand automatically vacated is
that laid down in the Privy Council decision in ---'Shama Purshad
Roy Chowdhry v. Hurro Purshad', where it was held that certain
orders and decrees which are subordinate and dependent upon
earlier orders and decrees could remain in force so long as the
order or decree on which they were dependent are not reversed or
superseded. "
AIR 1953 Mad. 587 (DB)
10 Moo Ind App 203 (PC) (D)
"The principle in 'Shama Purshad Roy Chowdhry's case'
has direct application in other cases for instance in the case of a
preliminary and final decree where the final decree is passed and
subsequently the preliminary decree is set aside in appeal, the
result of which would be the final decree becomes superseded. "
15. In Jakkampati Rangaiah v. Kunala Peddireddi3, a similar view was
taken by this Court referring to Shama Purshad Roy Chowdhry's case.
In the said case, extension of time to pay the decretal amount was refused
and a final decree was passed. Questioning the refusal to extend time, an
Appeal was filed. An objection was raised by the decree holder that extension
cannot be granted as preliminary decree merged with final decree.
The District appellate Court allowed the same and rejected the objection.
Then a Revision was filed before this Court and the same was dismissed
referring to Shama Purshad Roy Chowdhry's case. In an un-reported
Judgment of this Court speaking through Justice M. Jaganatha Rao in Gunda
Ramaswamy v. Suda China Bhadraiah & others, CRP No.3139/1983,
dated 12-4-1984, a similar view was taken.
16. This principle of a 'dependent order' was considered in
G. Ramegowda v. The Special Land Acquisition Officer, Bangalore4.
In that case, there was a delay in filing Appeals under the Land Acquisition
Act, 1894 by the State questioning enhanced compensation awarded by the
Civil Court on reference under Section 18 of the Act. The delay applications
filed by the State were condoned by a Division Bench of High Court of
Karnataka.
AIR 1957 AP 330
(1988) 2 SCC 142
17. Questioning the order condoning delays, the private parties
approached Hon'ble Supreme Court. During the pendency of the Civil Appeal
before Hon'ble Supreme Court, the Division Bench of Karnataka High Court
passed orders on merits in the State appeals. Questioning the Appeals passed
on merits, the private parties filed SLPs before the Hon'ble Supreme Court by
that time.
18. While answering a similar contention as urged by the counsel for
Respondent in this case, it was held at Paragraph 10 by the Hon'ble Supreme
Court speaking through Hon'ble Justice M.N.Venkatachalaiah that decision in
Appeal rendered on merits by the Division Bench of Karnataka High Court as
dependent on the Appeal pending before Hon'ble Supreme Court regarding
condonation of delay. The term 'dependent order' was explained at
Paragraph 10 thereof and the same reads as under:-
"10. We might, perhaps, deal with the latter submission of Shri Veerappa first.
The fact that the main appeals are themselves, in the meanwhile, disposed of
finally on the merits by the High Court would not by itself detract from and bar
the consideration of the correctness of the order condoning the delays. This is
an instance of what are called "dependent orders" and if the order
excusing the delays is itself set aside in these appeals, the further
exercise, made in the meanwhile, by the High Court finally disposing
of the appeals, would be rendered nugatory. The submission of Shri
Veerappa is, therefore, insubstantial."
19. The above Judgment was quoted with approval by the
Honourable Supreme Court in Rikhabsao Nathusao Jain v.
Corporation of The City Of Nagpur5 at Paragraphs 32 and 33.
2009(1) SCC 240
20. In view of the same, passing of final decree does not render this
Revision infructuous and in fact makes the final decree dependent on the
outcome of this Revision. As such, the Revision can be maintained.
21. In view of the above, order of the trial Court imposing condition of
payment of costs is set-aside. Consequently, the preliminary decree as well
as the final decree in O.S.No.14 of 2014 dated 23.01.2017 and 01.07.2024
respectively passed by the I Additional District Judge, Nellore, SPSR Nellore
District are set-aside.
22. The Petitioners are directed to conclude their evidence within four (4)
months from today. The trial Court shall endeavour to dispose of the suit
within three (3) months thereafter. The Petitioners shall not take unnecessary
adjournments.
23. With the above observations, the Civil Revision Petition is allowed.
There shall be no order as to costs. As a sequel, pending applications, if any,
shall stand closed.
________________
NYAPATHY VIJAY, J
Date: 19.11.2024
Note: L.R copy be marked
(B/o)
IS
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION No.1180 of 2020
Date: 19.11.2024
Note: L.R copy be marked
(B/o)
IS
