M/S Sri Laxmi Srinivasa Traders vs M/S Gautham Trading Company,
2023 Latest Caselaw 3510 Tel

      THE HONOURABLE SMT JUSTICE P.SREE SUDHA


                      C.R.P.No.2072 of 2023

ORDER:

This Civil Revision Petition is filed against the order of

the Principal District Judge, Suryapet, dated 16.06.2023,

allowing E.A.No.15 of 2023 in E.P.No.598 of 2018 in

O.S.No.125 of 2019 filed by the plaintiff/Decree Holder,

who is the respondent herein, under Section 151 C.P.C.,

seeking to issue fresh warrant of attachment of immovable

property with modified boundaries as mentioned in the

schedule for due execution of decree.

2. The facts, in brief, are as under:

The respondent/plaintiff filed the above suit against

the revision petitioners/defendants for recovery of

Rs.16,45,133/- together with future interest at the rate of

36% per annum from the date of suit till the date of

realization. Summons sent to defendant No.1 returned PSS, J CRP No.2072 of 2023

unserved as refused. However, the plaintiff not pressed the

suit against defendant No.2 and hence the suit against

defendant No.2 was dismissed. Plaintiff's evidence was

recorded. Basing on the evidence of plaintiff, who was

examined as P.W.1, and the documents filed by him, the

trial Court decreed the said suit in favour of the plaintiff

and against 1st defendant firm by judgment dated 05.08.2016

holding that defendant No.1 firm represented by defendant

No.2 is liable to pay a sum of Rs.16,45,133/- with interest at

7.5% per annum from the date of order till the date of

realisation on the principal sum. Thereafter, the

respondent/D.Hr. filed E.P.No.598 of 2018 seeking to attach

the E.P. schedule immovable property of the judgment

debtor/defendant No.1. The trial Court passed an

attachment of the E.P. schedule property of the J.Dr. During

the process of execution of attachment, the Bailiff of the

Court had returned the warrant since the boundaries were

not tallied. Therefore, the respondent/D.Hr again filed the PSS, J CRP No.2072 of 2023

aforesaid E.A.No.15 of 2023 seeking to issue a fresh

attachment warrant with modified boundaries of the flat as

mentioned in the schedule for due execution of the decree.

3. The Judgment Debtor No.2 filed counter and opposed

the application stating that the D.Hr. himself withdrawn the

suit against judgment Debtor No.2 and accordingly the trial

Court passed decree and judgment against defendant

No.1/J.Dr No.1. J.Dr.No.2 filed his vakalat in his individual

capacity only, but not in the capacity of proprietor of

J.Dr.No.1 firm. It is further stated that J.Dr.No.1 firm was

already closed before filing of the suit by the D.Hr and the

said fact was known to the D.Hr. The D.Hr. also filed two

cheque bounce cases and the same were dismissed by the

criminal Court and there was no property in the name of

J.Dr No.1. The E.P. schedule shown by the D.Hr. is

pertaining to 34 Flats, but not the schedule of Flat No.204. It

is further stated that J.Dr.No.2 already alienated the E.P.

PSS, J CRP No.2072 of 2023

schedule property in favour of one K.Venkateswar Rao in

the year 2014 itself, who in turn mortgaged the said house

with Canara Bank, Kodad for housing loan and for

educational loan of his daughter. Therefore, there is no

property available as shown in the E.P. schedule and as

such the trial Court cannot attach the property as it belongs

to the said K.Venkateswar Rao. The D.Hr. has not filed any

proof of ownership showing that the E.P. schedule property

belongs to J.Dr.No.1. It is further stated that the D.Hr.

unnecessarily dragged J.Dr.No.2 into the present legal

proceedings by making him as a party to the E.P.

proceedings though there is no decree against him and as

such the present E.P. is not executable as per the provisions

of Section 47 of C.P.C. Therefore, he prayed the Court to

dismiss the application.

4, After considering the material available on record, the

trial Court allowed the application and issued fresh warrant PSS, J CRP No.2072 of 2023

of attachment with the boundaries of the Flat as reflected in

the registered sale deed bearing document No.2767 of 2011

dated 17.03.2011 with a direction to the Bailiff to execute the

same. Challenging the same, the present Civil Revision

Petition has been filed by the judgment debtors, inter alia,

contending that the trial Court ought to have dismissed the

application since the respondent/D.Hr. had filed for fresh

attachment of the immovable property without seeking

amendment of the schedule property under Order 6 Rule 17

of C.P.C. The trial Court at the first instance had issued

warrant of attachment in E.P.No.598 of 2018 on 23.03.2023

without considering the submission that the D.Hr had

already availed the remedy by filing a private complaint

against the J.Drs for the offence punishable under Section

138 of N.I Act for dishonouring of the same cheque bearing

No.177717 for Rs.10,13,253/- dated 11.07.2013 and the

Criminal Court vide judgment dated 18.06.2015 passed in

C.C.No.696 of 2013 (old C.C.No.1335 of 2013) found the PSS, J CRP No.2072 of 2023

J.Drs. not guilty of the said offence. Suppressing the said

fact, the respondent/D.Hr. filed O.S.No.128 of 2015 on

16.07.2015, which was decreed on 05.08.2016, and obtained

warrant of immovable property by misrepresenting to the

trial Court and hence the same is liable to be set aside. He

relied upon a decision of House of Lords in Salomon v.

Salomon and Co. Ltd., wherein it was held that company is

different/distinct legal entity and its members are not

personally liable to the creditors of the company. He

further contended that entire transactions are

business/commercial purpose, whereas the trial Court had

issued the impugned attachment order on the property

which is in the personal capacity of the 2nd J.Dr and,

therefore, the attachment of immovable property of the 2nd

J.Dr. in the personal capacity is ex facie illegal and arbitrary.

He further contended that J.Dr. No.2 already alienated the

EP schedule property in favour of one K.Venkateswar in the

year 2014 itself, who in turn mortgaged the same with PSS, J CRP No.2072 of 2023

Canara Bank, Kodad for housing loan and educational loan

of his daughter. Therefore, he requested the Court to set

aside the impugned order of the trial Court.

5. Heard both sides and perused the material available

on record.

6. The suit was dismissed against defendant

No.2/J.Dr.No.2 as it was not pressed by the plaintiff and a

decree was passed against the 1st defendant firm/J.Dr.No.1

and that the property being attached belongs to J.Dr.No.2.

This aspect was not decided by the trial Court. Though

counter has been filed by J.Dr.No.2, the contents of it were

not considered by the trial Court in the impugned order.

Therefore, the impugned order of the trial Court is patently

erroneous and is liable to be set aside and accordingly set

aside. However, this Court finds that it is a fit case where

the matter is to be remanded back to the trial Court for fresh

consideration.

PSS, J CRP No.2072 of 2023

7. Under the aforementioned circumstances, the matter

is remanded back to the trial Court with a direction to

consider the counter filed by J.Dr.No.2 and dispose of the

E.P. filed by the respondent/D.Hr. afresh on merits and in

accordance with law after affording an opportunity of

hearing to both sides.

8. Accordingly, the C.R.P. is disposed of. There shall be

no order as to costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________________ JUSTICE P.SREE SUDHA

02 .11.2023 Gsn