Dr. K.A. Sattar Khan vs Zia Peer Mohammed
2022 Latest Caselaw 6495 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                     C.R.P.No.2422 of 2009
ORDER:

This Civil Revision Petition is filed by the revision

petitioner/judgment debtor in E.P.No.104 of 2005 in O.S.

No.981 of 1998 assailing the order dated 06.04.2009 on

the file of the learned V Senior Civil Judge, City Civil Court,

Hyderabad.

2. The revision petitioner is the judgment debtor

in E.P. No.104 of 2005 and defendant in O.S.No.981 of

1998 and that the judgment and decree dated 28.09.2004

in the said Original Suit has attained finality. Thereafter,

the decree holders have filed Execution Petition in E.P.

No.104 of 2005 for recovery of possession and arrears of

rent. In E.P.No.104 of 2005, the decree holders have

alleged that the suit was decreed on 28.09.2004 and it was

not challenged by the judgment debtor/defendant.

Previously, they have filed E.P.No.131 of 2004, it was

closed on payment of Rs.54,586/- on 19.04.2005. After

AVR,J CRP No.2422 of 2009

deduction of the said amount, the judgment debtor is still

liable to pay Rs.2,92,560/-, as such the said E.P. is filed.

3. Whereas, the contention of the judgment

debtor/revision petitioner herein is that he is the Managing

Director of Grace Hospital Corporation, the E.P. is filed

against him in his individual capacity. He has filed a Memo

dated 26.06.2004, vide SR No.3695 of 2004 as to delivery

of vacant possession of the suit schedule property on

20.06.2004 itself. The arrears of rent payable by the

judgment debtor after the termination of tenancy is at the

rate of Rs.8,670/- per month and the same is worked out

to Rs.95,370/-. The Court has awarded damages @

Rs.10,000/- per month. From the date of termination, i.e.,

from 15.08.1998 to 26.06.2004 for 70 months, which

comes to Rs.7 lakhs, totally the amount payable by the

judgment debtor is worked out at Rs.7,95,370/- and

Rs.20,677/- being the cost awarded in the suit and

Rs.5,280/- towards water charges. Thus, a total amount of

Rs.8,11,327/- is payable by the judgment debtor to the

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decree holders, but he has paid an amount of

Rs.8,27,202/- and he is not liable to pay any amount.

4. The trial Court during enquiry recorded the

evidence of decree holder No.1 as PW.1, Exs.A.1 to A.3

documents were marked. Thereafter, on behalf of judgment

debtor, he is examined as RW.1, Exs.B.1 to B.3 were

marked. On careful appreciation of the entire oral and

documentary evidence, the trial Court has allowed the

execution petition attaching the movable properties of

judgment debtor for non-payment of E.P. amount and

accordingly, the attachment of movables of judgment

debtor was ordered. Feeling aggrieved by the said orders,

this civil revision petition is filed.

5. Heard the learned counsel for the revision

petitioner/judgment debtor and the respondents/decree

holders. The submissions made on either side have

received due consideration of this Court.

6. The learned counsel for the revision petitioner/

judgment debtor submitted that he would file a calculation

AVR,J CRP No.2422 of 2009

memo showing the payments made by the revision

petitioner/judgment debtor. Accordingly, this matter was

reserved on 29.10.2022 with a liberty to the learned

counsel for the revision petitioner/judgment debtor for

filing calculation memo with due notice to other side within

one week from that day in the Registry, but till date, no

such calculation memo is filed by the revision

petitioner/judgment debtor.

7. Be it stated that the execution petition is filed by

the decree holders claiming an amount of Rs.2,92,560/-.

It is a fact that in the Original Suit No.981 of 1998, decree

was obtained against the defendant viz., Grace Hospital

Corporation, represented by Managing Director, Dr. K.A.

Sattar Khan. Whereas, the present Execution Petition is

filed against Dr. K.A. Sattar Khan for Grace Hospital

Corporation.

8. The learned counsel for the revision petitioner

strenuously contends that the execution petition is not

maintainable for the simple reason that the execution

petition is filed against the wrong person. Though the

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judgment debtor has handed over the possession of E.P.

schedule property on 25.06.2004 itself, the decree holders

have been claiming the rents/damages till December 2007,

not entitled for the amounts, the trial Court has

erroneously concluded that the decree holders are entitled

for the said amount.

9. It is true that as per the judgment and decree in

O.S.No.981 of 1998, the defendant is Grace Hospital

Corporation represented by Managing Director, Dr. K.A.

Sattar Khan, whereas the present E.P. is filed against Dr.

K.A. Sattar Khan for Grace Hospital Corporation. Such

objection as to description of the defendant/judgment

debtor is raised for the first time. It is pertinent to note that

on one hand, the judgment debtor is claiming that he has

paid an amount of Rs.8,27,202/- against the claim of

Rs.8,11,327/- i.e., he has paid excess amount to the

decree holders and that he has handed over the vacant

possession of the suit schedule property on 26.06.2004

itself. On the other hand, he is taking a plea that the

Execution Petition filed against him is not maintainable.

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10. The admitted or undisputed facts of the case

are that the judgment debtor did not prefer an appeal

against the judgment and decree in OS No.981 of 1998 and

it has attained finality. Previously, the decree holders have

filed E.P.No.131 of 2004 wherein the judgment debtor has

paid Rs.54,586/- and accordingly after payment of the said

amount, E.P. was closed and for the remaining amount,

the present E.P. is filed. Undisputedly, the decree holders

have previously filed E.P. Nos.109 of 2001, 24 of 2003 and

42 of 2004. For the first time, the judgment debtor has

raised such objection as to the description of the judgment

debtor through this Execution Petition.

11. Having regard to the fact that the plaintiffs have

obtained decree against the Grace Hospital's Managing

Director and the said decree has attained finality and the

description is only mentioned as Dr. K.A. Sattar Khan,

Grace Hospital. In my considered opinion, such description

will not change the status of the judgment debtor, since in

the judgment it is mentioned as Grace Hospital

Corporation, represented by Dr. K.A. Sattar Khan,

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Managing Director and in the E.P., it is only mentioned as

Dr. K.A. Sattar Khan for Grace Hospital Corporation.

Thus, whether Grace Hospital Corporation, represented by

its Managing Director, K.A. Sattar Khan or Dr. K.A. Sattar

Khan representing the Grace Hospital Corporation does not

make any difference because either way, Dr. K.A. Sattar

Khan is representing Grace Hospital Corporation. Hence,

in the factual matrix of the case as discussed above, I do

not find any force in the submission made by the learned

counsel for the judgment debtor/revision petitioner.

12. Secondly, the contention of the revision

petitioner/judgment debtor is that he has vacated and

handed over the vacant possession of the premises to the

decree holders on 26.06.2004, keys were delivered through

Eshwar Rao, who is an employee. There is no evidence to

show that one Eshwar Rao is the employee working under

judgment debtor or that he has handed over the keys of the

premises after vacating the same either on 25.06.2004 or

on 26.06.2004 or on any other day prior to December

2004. Therefore, in my considered opinion, the findings

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recorded by the trial Court that there is no evidence in

support of the plea taken by the judgment debtor that he

handed over the case of the premises to the plaintiff

through Eshwar Rao either on 25.06.2004 or on

26.06.2004 has no basis is sustainable.

13. Thirdly, the claim of judgment debtor that he

has paid more amount than what claimed by the decree

holders has no force for the simple reason that the

calculations made in his counter are not supported by any

other receipts or vouchers. Though he is claiming that he is

only liable to pay damages for 70 months from 15.08.1998

to 26.06.2004 at the rate of Rs.10,000/- per month, there

is no evidence to show that vacant possession of the

premises was delivered on 26.06.2004, whereas the

admitted case of the decree holders is that the possession

was not handed over till 27.12.2004.

14. Therefore, in the above circumstances, viewed

from any angle, there is no merit in the contention raised

by the judgment debtor/defendant that the possession of

the suit schedule property was handed over either on

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25.06.2004 or on 26.06.2004. Whereas, the evidence of

PW.1 appears to be reliable, to the effect that the keys were

handed over to PW.1 only on 28.12.2004, through his

Office Assistant Murtuza. As such, in the above factual

background, in the absence of filing the calculation memo

as submitted by the learned counsel for the revision

petitioner/judgment debtor, considering the claim made by

the decree holders in the Execution Petition for an amount

of Rs.2,92,560/-, I do not find any irregularity or infirmity

in appreciation of the oral and documentary evidence

available on record by the trial Court.

15. Therefore, on overall consideration of the oral

and documentary evidence available in E.P.No.104 of 2005,

I do not find any infirmity in the findings recorded by the

trial Court and the order impugned does not warrant any

interference by this Court and it is sustained.

16. In the result, the Civil Revision Petition is

dismissed. However, in the circumstances of the case,

both the parties shall bear their respective costs.

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As a sequel, miscellaneous applications, if any

pending in this civil revision petition, shall stand closed.

_________________________________ A. VENKATESHWARA REDDY, J.

Date: 06.12.2022 Isn