Sri. Kurbuzay Neelakant Rao vs Sri. Sanjay Manik Rao
2022 Latest Caselaw 6921 Tel

      HONOURABLE SMT. JUSTICE P.SREE SUDHA

               C.R.P.Nos. 1900 and 1999 of 2022

COMMON ORDER:

      Since the subject matter of these two revisions is

interrelated and the parties are also same, they are being

disposed of by this common order.

C.R.P.No.1900 of 2022

      This revision is filed against the docket order, dated

16.06.2022 passed by the learned V-Additional District

Judge, Bodhan, in I.A.No.71 of 2022 in an unregistered

A.S.Nil of 2022 (now numbered as A.S.No.3 of 2022).

      Respondent herein (defendant) filed the aforesaid

I.A.No.71 of 2022 under Section 5 of Limitation Act seeking

to condone the delay of 18 days in filing the appeal against

the judgment and decree passed in O.S.No.54 of 2018 dated

22.02.2021 on the file of the Senior Civil Judge, Bodhan. It is

stated that due to spread of Covid-19 at the relevant point of

time, the defendant could not approach his Counsel and file

the appeal in time and if the delay is not condoned, he will

be put to irreparable loss and his right of contest would be

defeated.

The appellate Court, on a Consideration of the entire

material available on record, held that there is sufficient

cause to condone the delay of 18 days in preferring the

appeal and accordingly allowed the application.

Aggrieved by the aforesaid order, the revision

petitioner/plaintiff filed the present revision contending

that the appellate Court erroneously allowed the application

without issuing any notice and without affording an

opportunity to file counter and, therefore, the order passed

by the appellate Court is liable to be set aside.

Heard the learned Counsel for the revision

petitioner/plaintiff. There was no representation on behalf

of the learned Counsel for the respondent/defendant

despite granting sufficient opportunity for arguing his case.

Perused the entire material placed on record.

Suit being O.S.No.54 of 2018 filed by the revision

petitioner/plaintiff against the respondent/defendant for

recovery of suit amount was decreed by the trial Court, on

22.02.2021, for a sum of Rs.14,22,000/- together with

subsequent interest @ 12% per annum from the date of suit

till the date of decree and thereafter @ 6% per annum from

the date of decree till the date of realisation on the principal

amount of Rs.9,00,000/-. Thereafter, the revision

petitioner/plaintiff filed E.P.No.2 of 2022 before the Civil

Judge, Senior Division, Biloli, and the same is pending

consideration. Subsequently, the respondent/defendant

preferred an appeal being A.S.No.3 of 2022 before the V-

Additional District Judge, Bodhan, against the judgment

and decree passed in O.S.No.54 of 2018, dated 22.02.2021,

along with delay condonation petition on 16.06.2022.

Having regard to the facts and circumstances of the case, the

appellate Court condoned the delay of 18 days in filing the

appeal.

Although there was delay of 18 days in preferring the

appeal, the respondent/defendant has been able to show

sufficient reasons for such delay. The explanation offered

by him, in my considered view, is satisfactory and

convincing. In view of the facts and circumstances of the

case and the reasons explained by the

respondent/defendant and as the period of delay is only 18

days, this Court finds no reason to interfere with the

impugned order of the appellant Court.

Accordingly, C.R.P.No.1900 of 2022 is dismissed. No

order as to costs.

C.R.P.No.1999 of 2022

This revision is filed against the order, dated

13.07.2022, passed by the learned V-Additional District

Judge, Bodhan, in I.A.No.75 of 2022 in A.S.No.3 of 2022.

Respondent/defendant filed the aforesaid application

under Order 41 Rule 5 of C.P.C. seeking to stay the

execution of the judgment and decree dated 22.02.2021 in

O.S.No.54 of 2018 on the file of the Senior Civil Judge,

Bodhan, till disposal of the main appeal.

In the affidavit filed in support of the application, it is

stated by the respondent/defendant that revision

petitioner/plaintiff filed O.S.No.54 of 2018 for recovery of

money basing on the promissory note alleged to have

executed by him and the same was decreed by the trial

Court by judgment dated 22.02.2021. Aggrieved by the said

judgment and decree, the defendant filed the aforesaid

appeal being A.S.No.3 of 2022 on the file of the V-

Additional District Judge, Bodhan. It is further stated that

he did not borrow any amount from the plaintiff and the

signature on the promissory note does not belong to him

and that steps have been taken for sending Ex.A1-

promissory note to Expert opinion along with

contemporary signatures. The plaintiff also obtained

attachment of his agricultural land to an extent of Ac.5.11

gts in Sy.No.1254 of Karla BK Village of Biloli Taluq,

Nanded District vide I.A.No.167 of 2018 and now he filed

E.P.No.2 of 2022 for sale of the attached property; that the

property already attached is worth more than Rs.50,00,000/-

which is sufficient security for realization of the decretal

amount.

Revision petitioner/plaintiff filed a counter

contending that since the defendant is intending to drag on

the matter, he prayed the Court to direct him to deposit the

amount as per Order 41 Rule 3 (2) (c) of C.P.C.

Having heard the learned Counsel appearing on

either side, the learned Additional District Judge, Bodhan,

held that as the property of the defendant was already

attached before judgment, no further security is required for

realization of the decree and accordingly granted Stay of

operation of judgment and decree of the trial Court till

disposal of the appeal.

Aggrieved by the aforesaid order, the present revision

has been filed by the revision petitioner/plaintiff

contending that the Suit being O.S.No.54 of 2018 filed by

him against the respondent/defendant for recovery of suit

amount was decreed by the trial Court, on 22.02.2021, for a

sum of Rs.14,22,000/- together with subsequent interest @

12% per annum from the date of suit till the date of decree

and thereafter @ 6% per annum from the date of decree till

the date of realisation on the principal amount of

Rs.9,00,000/-. The revision petitioner/plaintiff filed an

Execution Petition for realization of the decretal amount

along with a petition seeking to transfer said decree on the

file of Senior Civil Judge Court, Bodhan to Senior Division

Court at Biloli, Nanded District and as such it was

transferred and numbered as E.P.No.2 of 2022 on the file of

the Civil Judge, Senior Division, Biloli, and the same is

pending consideration. Thereafter, the defendant preferred

an appeal being A.S.No.3 of 2022 before the V-Additional

District Judge, Bodhan, against the judgment and decree

passed in O.S.No.54 of 2018 dated 22.02.2021, along with a

delay condonation petition on 16.06.2022 and the same was

allowed and aggrieved by the said order, the revision

petitioner preferred C.R.P.No.1900 of 2022. It is further

stated that the appellate Court ought to have seen that the

defendant has filed a false sworn affidavit in I.A.No.75 of

2022 stating that the property has already been attached in

I.A.No.167 of 2018 and believing the same, the appellate

Court granted stay without security,, which is mandatory as

per Order 41 Rule 5 (5) of C.P.C. and as such the reasons

assigned by the appellate Court while allowing the petition

under Order 41 Rule 5 of C.P.C. is unsustainable in law. It

is further stated that I.A.No.518 of 2019 filed by the

defendant for sending Ex.A1-Promissory Note to Expert

along with admitted signatures, was allowed, on 28.11.2019,

with a direction to the defendant to deposit an amount of

Rs.8,000/- and as the defendant did not take any steps to

furnish contemporary signatures for comparison, it was

returned by the Truth Lab, Hyderabad on 07.01.2020. It is

further stated that under Order 41 Rule 5(5) of C.P.C. a

deposit or security is a condition precedent for an order by

the appellate Court for granting Stay of execution of the

decree and therefore, requested the Court to set aside the

impugned order.

Admittedly, the respondent/defendant filed A.S.No.3

of 2022 against the judgment and decree passed in

O.S.No.54 of 2018 dated 22.02.2021 on the file of Senior Civil

Judge's Court, Bodhan. Along with the appeal, he filed

I.A.No.75 of 2022 seeking Stay of execution of the said

judgment and decree till disposal of the appeal. In the

affidavit filed in support of the application, the

respondent/defendant, stated that the revision

petitioner/plaintiff filed I.A.No.167 of 2018 seeking

attachment before judgment of his agricultural land to an

extent of Ac.5.11 gts. in Sy.No.1254 of Karla B.K. village,

Biloli Taluq, Nanded District, which worth more than

Rs.50,00,000/-, and the same was attached by the trial Court

by order dated 16.04.2019. Thereafter, the revision

petitioner/plaintiff filed E.P.No.2 of 2022 before the Civil

Judge, Senior Division, Biloli, for sale of the said attached

property. The contention of the revision petitioner/plaintiff

is that the appellate Court erroneously stayed the operation

of the judgment and decree in O.S.No.54 of 2018 without

directing the respondent/defendant to furnish security in

money cases as per Order 41 Rule 5 (5) of C.P.C. He further

contended that in Paragraph No.4 of the affidavit, the

respondent/defendant falsely stated that his property was

already attached before judgment in I.A.No.167 of 2018 in

O.S.No.54 of 2018 and believing the same, the appellate

Court granted Stay without any direction to furnish security

and, therefore, the impugned order is liable to be set aside.

A perusal of the docket order dated 16.04.2019 passed

in I.A.No.167 of 2018 in O.S.No.54 of 2018 reveals that

attachment of the petition scheduled property under Order

38 Rule 5 of C.P.C. was not ordered and that the appellate

Court merely basing on the false sworn affidavit of the

respondent/defendant, granted Stay without any direction

to furnish security. Since the said order of the appellate

Court is patently erroneous, it is liable to be set aside and

accordingly it is set side. However, this Court finds that it is

just and reasonable to direct the respondent/defendant to

deposit half of the decretal amount before the trial Court.

In the result, C.R.P.No.1999 of 2022 is allowed with a

direction to the respondent/defendant to deposit half of the

decretal amount before the trial Court within a period of

two months from the date of receipt of a copy of this order

and on such deposit, the appellate Court is directed to

proceed further with the appeal. There shall be no order as

to costs.

However, C.R.P.No.1900 of 2022 is dismissed. No

order as to costs.

Miscellaneous petitions, if any, pending, shall stand

closed.

_______________________ JUSTICE P.SREE SUDHA

21.12.2022 Gsn