Kacham Kondaiah vs Proddaturi Srinivas
2021 Latest Caselaw 4505 Tel

THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                         CRP No.44 of 2020

ORDER:

1. The petitioner/decree holder has filed this Civil Revision

Petition assailing the order dated 05.09.2019 in EA No.3 of 2018 in

EP No.3 of 2016 in OS No.21 of 2008 on the file of the Judge, Family

Court-cum-Additional District and Sessions Judge at Karimnagar.

2. The petitioner/decree holder has filed an application under

Order-VII, Rule-14 (3) read with Section 151 of the Civil Procedure

Code to receive the documents and that application was dismissed by

the Court below with an observation that the executing Court cannot

go beyond the decree and it must take the decree as it stands, as the

decree is binding and conclusive between the parties to the suit.

There is no whisper in the affidavit and petition as to why the

documents mentioned therein are not filed in the main suit before

passing the decree and there is no explanation for non-filing of such

documents earlier. Further, the documents pertains to the period

before passing the decree in OS No.21 of 2008 and they are not

relevant to the present EP proceedings and are not helpful to the

petitioner in any way.

3. As per the records, the Original Suit No.21 of 2008 was filed

for specific performance of the agreement of sale and the suit was

decreed on 01.04.2015 directing the plaintiff to deposit the balance

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sale consideration of Rs.78,98,000/- within two months and on such

deposit, the defendants have to execute the regular sale deed in respect

of the plaint A & B schedule properties.

4. In the affidavit filed in support of EA No.3 of 2018, it is

averred by the petitioner/decree holder that recently he has collected

some important documents and they are the release deed document

No.681 of 2005 obtained through mee-seva, certified copy of Writ

Petition Nos.15651 and 6066 of 2009, receipts of Andhra Bank, dated

09.09.2014 and dated 29.09.2014, credit advice receipt of Andhra

Bank, dated 09.09.2014 and again 15.09.2014, summary of receipts of

Andhra Bank, dated 16.09.2014, lodgement schedule dated

22.07.2015 along with photostat copy of cheque, memo dated

22.07.2015, certified copy of memo dated 30.04.2015 along with

orders of the Court dated 07.07.2015. However, the petitioner has not

mentioned as to why these documents could not be filed in the

original suit itself.

5. The learned counsel for the petitioner seeks to submit that

pursuant to the orders in Writ Petition Nos.15651 and 6066 of 2009

dated 03.11.2009, some amount was paid to the bank and if this

amount is credited, he is not liable to pay further amount to the

judgment debtors, pursuant to the decree in OS No. 21 of 2008, which

was decreed on 01.04.2015. He relied on the principles laid in Bada

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Bodaiah and another v. Bada Lingaswamy and others1. He also seeks to

submit that when the execution petition was filed, office of the

District Court at Karimnagar has taken objection for not depositing

the amount and through the resubmission memo, he has explained the

facts stating that as per the accounts maintained by the plaintiff, he is

liable to pay only Rs.7,09,942/- towards balance of sale consideration.

Since, the first defendant has already transferred his share by

receiving the balance sale consideration and as the final loan account

with the bank is settled, the plaintiff is liable to pay the said amount

only, which is ready to deposit the same and accordingly, furnished a

copy of sale deed executed by the first defendant and the receipts

issued by the bank authorities, municipal corporation etc.

6. Therefore, it appears from the material available on record that

the property was mortgaged with Andhra Bank, Karimnagar branch

and the petitioner has paid the amount in Andhra Bank, now the

petitioner intends to produce those documents as evidence in proof of

payment of the said amount, release of documents, summary of

receipts and receipts obtained from Andhra Bank subsequent to the

decree, which are relevant for the purpose of compliance of the orders

in judgment and decree in OS No.21 of 2008.

7. In spite of granting ample opportunity, there was no

representation on behalf of the respondents, that part pursuant to the

2003 (1) ALD 790

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order dated 07.01.2020 in IA No.1 of 2020 in CRP No.44 of 2020, all

further proceedings in EP No.3 of 2016 are stayed by this Court. In

such circumstances, if the petitioner/decree holder is permitted to

adduce evidence in proof of payment of certain amount to the Andhra

Bank and obtaining release deed, producing the receipts passed by the

Andhra Bank before the Court, no prejudice would cause to the

respondents/judgment debtors/defendants. All these documents are

quite essential to determine the real issue between the parties as

regards the payment of amount subsequent to the decree and even in

the course of pendency of the suit, pursuant to the directions of

Hon'ble Division Bench in WP Nos.15651 and 6066 of 2009 dated

03.11.2009.

8. In the result, the Civil Revision Petition is allowed and the

petitioner/decree holder is permitted to adduce evidence in respect of

the documents mentioned in the affidavit in EA No.3 of 2018 in proof

of payment of the amount subsequent to the decree or during

pendency of the suit, pursuant to the directions of Hon'ble Division

Bench of this Court. In the circumstances of the case, there shall be

no order as to costs.

9. Miscellaneous applications, if any pending in this revision

petition shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J.

Date: 20.12.2021 Isn