B.Srinivas vs C.Rajyalaxmi And Another
2023 Latest Caselaw 94 Tel

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                     C.R.P.No.152 OF 2020
ORDER:

This civil revision petition under Section 115 CPC is filed

challenging the order dated 06.12.2017 in E.P.No.26 of 2017, on

the file of the II-Additional District and Sessions Judge, Ranga

Reddy District, at L.B.Nagar.

2. Heard learned counsel for the petitioner and learned counsel

for the respondents. Perused the record.

3. Respondent No.1 herein, who is plaintiff, filed the suit

O.S.No.332 of 2007 for specific performance against respondent

No.2 and petitioner, who are defendant Nos.1 and 2. The said suit

was decreed ex parte by judgment dated 06.12.2007 directing

respondent No.2 and petitioner to complete construction of flat

Nos.101, 102 and 301 and handover the finished flats to respondent

No.1 within a period of three months from that date.

Subsequently, respondent No.1/decree holder filed E.P.No.26 of

2017 under Order XXI Rules 37 and 38 of the Civil Procedure

Code (for short 'the CPC') against the petitioner/judgment debtor

No.2 and respondent No.2/judgment debtor No.2 for his failure to

comply with the decree in O.S.No.332 of 2007. The trial court by

judgment dated 06.12.2019 directed the petitioner/judgment debtor

No.2 to undergo civil imprisonment for a period of two months for

violation to complete the unfinished work on flat Nos.101, 102 and

301 besides granting time till 20.01.2020 to complete the

unfinished worked as agreed upon, else he will be sent to Central

Prison, Cherlapally. Challenging the said order, the present

revision is filed by petitioner/judgment debtor No.2.

4. A perusal of the record would disclose that the plaintiff filed

O.S.No.332 of 2007 for specific performance against and

respondent No.2 and petitioner i.e., defendant No.1 and 2. They

were set ex parte and an ex parte order was passed on 06.12.2007

directing respondent No.2 and the petitioner herein to complete

construction of flat Nos.101, 102 and 301 and shall handover the

finished flats to respondent No.1 within a period of three months.

Respondent No.1-decree holder filed E.P.No.26 of 2017, under

Order XXI Rules 37 and 38 CPC against respondent No.2/

judgment debtor No.1 and petitioner/judgment debtor No.2 for

enforcement of the decree.

5. Respondent Nos.1 and 2 entered into a development

agreement-cum-general power of attorney whereunder the

petitioner herein along with another viz., J.Hari Krishna were

shown as attorneys appointed by the developer at page 9 of the

development agreement-cum-General Power of Attorney.

6. Since the suit in O.S.No.332 of 2007 filed for specific

performance of the development agreement was decreed ex parte,

it appears that subsequently, respondent No.1 filed another suit in

O.S.No.540 of 2017 before the III-Additional Chief Judge for

cancellation of the development agreement-cum-general power of

attorney dated 23.09.2004. The said suit was also decreed ex parte

and the development agreement-cum-general power of attorney

entered into between respondent Nos.1 and 2 was cancelled vide

judgment and decree dated 24.10.2018.

7. Be that as it may, the present execution petition is filed for

enforcement of the decree in O.S.No.332 of 2007 filed under Order

XXI Rules 37 and 38 CPC against the respondent No.2/Judgment

debtor No.1 and petitioner/judgment debtor No.2 for arrest of

petitioner herein and detention, which are, in fact, filed under a

wrong provision of law. The proper provision of law under which

the execution petition has to be filed is under Order XXI Rule 32

CPC for enforcement of the decree passed for specific

performance. The petitioner is only shown as an attorney in the

development agreement and one J.Hari Krishna is shown as the

Managing Director of respondent No.2 company. It appears that

the present execution petition is filed by the decree holder

suppressing the fact that the development agreement-cum-general

power of attorney dated 23.09.2004 entered into between

respondent Nos.1 and 2 was cancelled in O.S.No.540 of 2017 vide

judgment dated 24.10.2018.

8. The EP proceedings are not maintainable firstly on the

ground that E.P.No.26 of 2017 was filed under Order XXI Rules

37 and 38 CPC which relates to recovery of money in a money

decree, instead of filing a petition under Order XXI Rule 32 CPC

which is the correct provision of law for enforcement of decree

passed for specific performance of contract. However, the trial

court also considered the said aspect that EP was filed not under a

correct provision of law and proceeded with the EP stating that

merely quoting wrong provision of law is not a ground for

dismissal of the EP and passed the impugned order. The trial court

committed error in sentencing the petitioner/judgment debtor No.2

to undergo civil imprisonment for a period of two months in spite

of filing the EP under a wrong provision of law and also for not

following the procedure laid down under Order XXI Rule 40 CPC.

9. In the case on hand, the trial court erroneously passed the

impugned order without appreciation of provisions under Order

XXI Rule 32 CPC which is the relevant provision of law for

execution of the decrees passed for specific performance of

contract. The impugned order further reveals that the execution

petition was filed only against petitioner and judgment debtor No.2

without making judgment debtor No.1 as party to the EP

proceedings. Respondent No.2/judgment debtor No.1 along with

petitioner/ judgment debtor No.2 was directed to complete the

construction of flats as per the decree. In such circumstances, the

trial court has not gone into the said aspect as to how the EP is

maintainable without proceeding against the Managing Director of

the company for the purpose of execution of the decree. It is the

specific case of the petitioner that he is only shown as an attorney

and he is not a partner or director of respondent No.2/judgment

debtor No.1 company and that he is only a signatory to the

development agreement and also stood as a witness to the same.

10. For the foregoing reasons, I am of the view that the order of

the court below suffers from infirmity and the same is liable to be

set aside.

11. In the result, the civil revision petition is allowed and the

impugned order is set aside. There shall be no order as to costs.

12. Miscellaneous petitions, if any pending, stand closed.

_______________________ A.SANTHOSH REDDY, J 05.01.2023 Lrkm