Jasti Satyanarayana Since ... vs Polavarapu Sivarama Prasad 4 ...
2022 Latest Caselaw 3605 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

          CIVIL REVISION PETITION No.5329 of 2013

ORDER :

This revision is arising out of the order dated 11.09.2013 in

E.A.No.16 of 2011 in E.P.No.9 of 2010 in O.S.No.60 of 2004 on

the file of II Additional District Judge, Nalgonda at Suryapet.

2. In nutshell, the facts of the case are that a suit was filed by

the plaintiff against the defendants for recovery of money basing

on a promissory note. I.A.No.4943 of 2004 was filed for

attachment before judgment, which was allowed by the Court vide

order dated 15.09.2004. Pursuant to the said interlocutory order,

properties were attached on 05.10.2004 by the Court at Kodad.

Subsequently, in view of the compromise between the parties, the

matter was referred to Lok Adalat and an Award was passed on

29.09.2006 directing the defendants to pay the amount on or before

30.06.2007. Inspite of the said Award, the judgment debtors

did not pay the amount, for which, the plaintiff was constrained to

file an execution petition. During the course of the execution

proceedings, it is noticed by the decree holder that the factum of

GAC, J CRP.No.5329 of 2013

attachment of property before judgment was not brought to the

notice of the executing Court and due to the mistake crept-in in the

description of the property, an amendment petition was filed in the

execution petition to enable the decree holder to proceed with the

sale of the attached property.

3. The judgment debtor No.1 filed a detailed counter

contending that an ex parte order was passed in the interlocutory

application i.e. I.A.No.4943 of 2004 and the said ex parte order

was set aside taking into consideration the undertaking given by

him that he will not dispose the suit schedule property till the

disposal of the suit. Therefore, the question of attachment does not

arise, as the Court has accepted his undertaking on 14.10.2004 and

the petition for amendment of the E.P. schedule property was not at

all maintainable.

4. During the pendency of the execution proceedings, judgment

debtor No.2 was reported to be dead and his legal representatives

were brought on record.

GAC, J CRP.No.5329 of 2013

5. The executing Court, after hearing both the parties and

taking into consideration the material on record, allowed the

petition. Being aggrieved by the said orders, the present revision is

filed by the legal representatives of judgment-debtor No.2.

6. Heard learned counsel for both the parties and perused the

record.

7. It is specifically urged by the learned counsel for the revision

petitioners that the suit is against the partnership Firm, in which,

the 1st defendant is the Managing Partner and the individual

properties of the partners cannot be attached. Therefore, prayed to

set aside the orders of the trial Court, dated 11.09.2013 in

E.A.No.16 of 2011.

8. On the other hand, it is urged by the learned counsel for the

respondent that there is no irregularity in the orders passed by the

trial Court as the judgment debtors failed to pay the amounts

pursuant to the compromise. It is contended that though the Award

was passed in the year 2007, the revision petitioners/judgment-

debtors, without paying the amounts, are litigating till date in one

GAC, J CRP.No.5329 of 2013

way or the other. Therefore, he prayed to dismiss the revision

petition.

9. The executing Court has passed the detailed order holding

that the orders of attachment were set aside considering the

undertaking given by judgment debtor No.1. It is the specific

finding of the trial Court that none of the proceedings in the

interlocutory application in I.A.No.4943 of 2004 or in the suit,

would go to show that the attachment which was affected on

05.10.2004, was ordered to be raised or withdrawn and the said

attachment order was not withdrawn. It is also the specific

observation of the executing court that the decree holder is only

seeking the relief of amendment in deleting the prayer to the extent

of attachment of property as there is already attachment before

judgment.

10. It is the specific contention of the judgment-debtors that the

properties of the Firm can only be attached but not the individual

properties of the family members of the judgment debtors, but the

said contention cannot be looked into as the judgment debtor No.2

was made as a party in the individual capacity as well. The 1st

GAC, J CRP.No.5329 of 2013

defendant was representing the partnership Firm as its Managing

Director and he was also arrayed as defendant No.2 in his personal

capacity, and the decree was passed against judgment debtor Nos.1

and 2. Moreover, there was an order of attachment before

judgment in the suit itself. Therefore, this Court is of the

considered view that there is no irregularity or error in the orders of

the executing Court so as to interfere with the same.

11. In view of the above, the revision petition is dismissed as

devoid of merits. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 11.07.2022

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