Andhra Pradesh High Court - Amravati
The Director General Of Post Offices, vs Penaka Bujji Reddy on 26 September, 2024
APHC010543962023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
THURSDAY, THE TWENTY SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE Ms.
M JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION No.2849/2023
Between:
The Director General Of Post Offices, and Others ...PETITIONER(S)
AND
Penaka Bujji Reddy and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. BETHAPALLI SURYANARAYANA (CENTRAL GOVT COUNSEL)
Counsel for the Respondent(S):
1. Y L SIVA KALPANA REDDY
The Court made the following:
2
BSB, J
C.R.P.No.2849 of 2023
ORDER:
This revision petition, under Section 115 CPC by the judgment
debtors, is directed against the order, dated 21.09.2023, passed in
E.P.No.62 of 2023 in O.S.No.272 of 2004 on the file of the Court of I
Additional Senior Civil Judge, Nellore, filed by the DHr under Order XXI
Rule 11 and Section 39 CPC for realization of the EP amount.
2. Heard Sri Bethapalli Suryanarayana, learned Central Government
counsel appearing for the petitioners/JDrs and Ms. Y.L. Sivakalpana
Reddy, learned counsel for the respondent/DHr.
3. The facts leading to filing of this revision, briefly stated, are as
follows:
a. The suit in O.S.No.272 of 2004 was filed for eviction and for
recovery of rents. The trial Court decreed the suit and ordered eviction
by enhancing the lease amount from Rs.5,000/- to Rs.10,000/-. Against
the decree & judgment, the judgment debtors preferred appeal before
the Court of V Additional District Judge, Nellore, in A.S.No.98 of 2008.
The appellate Court modified the order impugned and passed
preliminary decree on 18.01.2011 directing the decree holder to file
separate petition for mesne profits. Accordingly, the decree holder filed
I.A.No.9 of 2014 for realization of arrears of rent and for mesne profits.
The said petition was allowed on 07.12.2022 with a direction to the
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respondents to pay rental amount of Rs.10,000/- per month from
16.11.2001 to 12.09.2011 by enhancing 15% rent on the existing rent
for every two years.
b. The judgment debtors having sufficient means to pay the amount
due under the decree passed against them are evading paying the
same. Thus, the decree holder prayed to order attachment of the
schedule mentioned movable properties of the judgment debtor no.3 by
issuing notice under Order XXI Rule 43 CPC.
4. The respondents/JDrs filed written submissions stating that the
respondent herein filed suit, vide O.S.No.272 of 2004 on the file of the
Court of II Additional Senior Civil Judge, Nellore, seeking the following
reliefs:
a. The relief for eviction of the defendants from the plaint schedule
property and delivery of its vacant possession to the plaintiff;
b. The relief of recovery of arrears of rent from 19.12.2001 to
30.06.2024 for an amount of Rs.2,10,000/-;
c. The relief of recovery of damages for an amount of Rs.10,000/-
for the unauthorized occupation of the premises;
The suit was decreed on 31.03.2008 in part directing the defendants to
vacate the suit schedule premises within three (3) months from the date
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of judgment and further holding that the plaintiff is entitled to recover an
amount of Rs.2,10,000/- from the defendants towards arrears of rent
from 19.12.2001 to 30.06.2024 and the defendant shall continue to pay
the monthly rent at the rate of Rs.10,000/- per month till delivery of
vacant possession of the schedule premises to the plaintiff and that the
defendants are at liberty to deduct monthly rent, if any, paid to the
plaintiff from enhanced monthly rent of Rs.10,000/- and the relief of
damages is dismissed without costs and that having been aggrieved by
the decree & judgment, the defendants preferred appeal, vide
A.S.Nos.98 2008 on the file of the Court of V Additional District Judge,
Nellore.
5. The appellate Court passed orders, dated 18.01.2011, directing
the defendants to vacate the suit schedule premises and handover
vacant possession to the respondent within three (3) months and the
order of the lower court was modified setting aside the relief of recovery
of an amount of Rs.2,10,000/-. It also set aside the direction to pay
monthly rent at the rate of Rs.10,000/- per month till delivery of vacant
possession of the suit schedule premises. Further, a relief of passing of
preliminary decree regarding payment of arrears of rent and future rents
and also directed to conduct inquiry as to the mesne profits payable
from 16.11.2001 until the delivery of vacant possession to the plaintiff.
BSB, J
6. The plaintiff/decree holder filed interlocutory application, viz.,
I.A.No.9 of 2014 in O.S.No.272 of 2004 on 10.10.2014 seeking a relief
to determine the mesne profits in terms of the preliminary decree, dated
18.01.2011,by appointing an advocate commissioner to conduct an
inquiry in relation to the schedule property and file report regarding
mesne profits from 16.11.2001 till the date of handing over possession,
i.e., till 12.09.2011.
7. The I Additional Senior Civil Judge, Nellore, passed the final
decree, dated 07.12.2022, directing the respondents to pay an amount
of Rs.10,000/- per month from 16.11.2001 to 12.09.2001 by enhancing
15% rent on existing rent on every two years and also granted a relief
that the petitioner is entitled to 18% interest on arrears of rent and
defaulted in payment of rents.
8. The petitioners neither challenged the decree and judgment in
A.S.No.98 of 2008 nor filed any appeal against the orders in I.A.Nos.9
of 2014 in O.S.No.272 of 2004. Hence, the orders in the interlocutory
applications have attained finality.
9. The respondent/DHr filed E.P.No.62 of 2023 in I.A.No.9 of 2014
in O.S.No.272 of 2004 seeking to attach movable properties of JDr No.3
by issuing notice under Order XXI Rule 43 CPC and thereafter, proclaim
and sell the EP schedule property under Order XXI Rule 64 CPC for
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realization of the EP amount of Rs.48,80,103/- with subsequent interest
on Rs.15,80,864/- at the rate of 18% per annum from 14.03.2023 till the
date of realization. The court below issued rule 43 notice to the JDr
and the matter was called on 04.07.2023. But, the JDr was called
absent. The Court below issued rule 43 CPC attachment warrant on
payment of process to the JDrs/petitioners herein.
10. The petitioners filed E.A.No.155 of 2023 in E.P.No.62 of 2023
praying the court to set aside the order passed on 04.07.2023. The
Court allowed the petition, vide docket order, dated 29.08.2023, with a
condition that the petitioner has to deposit 50% of the claim amount in
civil court on or before 21.09.2023 failing which the petition stands
dismissed.
11. The docket order, dated 29.08.2023 reads as hereunder:
"Counter of respondent filed.
Heard both sides.
On considered both sides pleadings and submissions,
though petitioner has no merits in his pleadings, this Court is
inclined to allow the petition with terms.
In the result, petition is allowed with a condition that
petitioner has to deposit the 50% claim amount in civil Court
Deposit on or before 21.09.2023, failing which petition stands
dismissed."
BSB, J
12. The plaintiffs filed E.A.No.161 of 2023 seeking the relief to grant
police aid to execute the attachment warrant ordered by the Court under
Order XXI Rule 43 CPC. As the petitioners failed to comply with the
conditional order, dated 29.08.2023, the Court below, vide docket order,
dated 21.09.2023, dismissed the execution application in E.A.No.155 of
2023 and allowed the police aid petition in E.A.No.161 of 2023 and
posted the matter to issue notice warrant as per Rule 43 on payment of
process by 06.11.2023. The defendants did not challenge the order,
dated 21.09.2023, and thus, it attained finality.
13. Having been aggrieved by the orders in E.P.No.62 of 2023, the
petitioner approached this Court by filing this revision. This Court,
granted interim stay, dated 06.11.2023, as follows:
"Considering the submissions made by the learned counsel
for the petitioners, there shall be interim stay as prayed for,
subject to the condition of petitioners depositing 50% of the
EP amount including the costs and interest, within a period of
four (04) weeks."
14. The revision petitioners/JDrs paid an amount of Rs.24,40,052/- in
compliance with the directions of this Court. The respondent contended
that the revision was filed with an intent to delay the execution, and that
the respondents filed the suit in the year 2004 and secured the decree
in the year 2008, and the appeal was partly allowed on 18.01.2011 and
BSB, J
the petition for mesne profits was filed in the year 2014 and the same
was allowed on 07.12.2022, and the execution petition was filed in the
year 2023 and secured attachment order and police aid, but due to
continuation of the stay orders in the revision, half of the decretal
amount was not paid. Hence, the respondent/DHr stated that the
revision petition is liable to be dismissed.
15. As the decree remained executable pursuant to order of dismissal
of E.A.No.155 of 2023, which is not challenged, there is no illegality or
irregularity committed by the execution Court in ordering warrant of
attachment. Similarly, without challenging the order passed in
E.A.No.161 of 2023, there is no ground to oppose grant of police aid for
execution of the warrant. There is no merit in the revision.
16. It is pertinent to mention that in the written submissions, it is
mentioned that due to continuation of the order of stay, the remaining
half of the decretal amount was not paid by the petitioners. After
disposal of this petition, since the interim order does not survive, it is
open for the JDrs to make the payment of the balance amount. In view
of payment of 50% of the EP amount in compliance with the directions
of this Court in the interim order, the execution Court has to determine
afresh the quantum of existing liability, for complete satisfaction of the
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decree. Thereafter, for the balance liability, if not discharged, a fresh
warrant of attachment can be issued.
17. Accordingly, the civil revision petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
___________________
B. S. BHANUMATHI, J
26-09-2024
RAR
