Jasti Venkata Satyanarayana Died ... vs Koganti Venkata Ratnam Died
2023 Latest Caselaw 3515 Tel

Citation : 2023 Latest Caselaw 3515 Tel
Judgement Date : 2 November, 2023

Telangana High Court

Jasti Venkata Satyanarayana Died ... vs Koganti Venkata Ratnam Died on 2 November, 2023

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

         CIVIL REVISION PETITION No. 2669 of 2023

ORDER:

This Civil Revision Petition is filed against the docket

Order dated 05.07.2023 in E.A.No.177 of 2023 in E.P.No.531 of

2018 passed by the learned Principal District Judge, Suryapet

which reads as follows:

"Heard both sides. Perused the record. This petition is filed by the petitioner/decree holder U/o.21 Rule 106 r/w Sec.151 of CPC with a prayer to restore the E.P. closed on 22.02.2023 and to permit the petitioner/decree holder to proceed with the E.P. in the interest of justice. The respondent/J.Dr. filed counter and opposed the petition. On perusal of the record it reveals that the petitioner/decree holder herein filed EP.No.531/2018 against the respondent/J.Dr. for realization of decretal amount of Rs.47,56,459/- by way of attachment and sale of immovable property shown in the petition. However, on 22.2.2023 the above E.P. was dismissed for default. It is not an order passed on merits of the case. Therefore, in the circumstances of the case, it is just and proper to set aside dismissal order, dt:22.02.2023 otherwise, the petitioner/decree holder will put to irreparable loss and hardships. Therefore, in order to meet the ends of justice the petition is allowed and dismissal order, dt:22.02.2023 in the above E.P is set aside on payment of costs of Rs.500/-. The E.P. is restored to its original file".

2. Petitioners/defendants stated that one Koganti Venkata

Ratnam/respondent No.1 herein filed O.S.No.55 of 2004 for

recovery of promissory note debt against them and he died

intestate on 03.04.2008. The said suit was compromised with

terms and accordingly Lok Adalat Award was passed on

29.09.2006. As per the Lok Adalat Award terms, the Judgment

Debtors have to pay the Award amount on or before 30.06.2007

and conditional attachment before Judgment was also passed in

respect of the item Nos.1 to 4 properties in I.A.No.4948 of 2004

in O.S.No.55 of 2004, but till today they have not paid any

amount, as such respondent No.2 herein filed the Execution

Petition in E.P.No.531 of 2018 to attach item Nos.1 to 4 of the

suit schedule property and proclamation and also for sale notice

of item Nos.1 to 4 to recover the decreetal amount, but it was

dismissed on 22.02.2023. Aggrieved by the said Order,

respondent No.2 herein filed E.A.No.177 of 2023 for restoration

of Execution Petition which was closed on 22.02.2023 and they

opposed the petition by filing the counter. The trial Court after

considering the arguments of both sides allowed the petition on

costs of Rs.500/- by setting aside the dismissal Order of the

Execution Petition dated 22.02.2023 and restored the Execution

Petition in E.P.No.531 of 2018. Aggrieved by the said Order,

preferred the present Civil Revision Petition.

3. The learned Counsel for the petitioners/Judgment

debtors mainly contended that the trial Court erroneously held

that on 22.02.2023, the Execution Petition was dismissed for

default, but it was dismissed on merits, as such the remedy is

to file a Civil Revision Petition before this Court for restoration

of E.P.No.531 of 2018. The provisions of Order 21 rule 106 of

C.P.C are not applicable for restoration of Execution Petition.

Therefore, requested this Court to set aside the Order dated

05.07.2023 passed in E.A.No.177 of 2023 in E.P.No.531 of 2018

in O.S.No.55 of 2004.

4. The docket Order of the trial court in E.P.No.531 of 2018

reads as follows:

"D.Hr called absent. No representation. Heard and perused the counter filed by the other side. The original/D.Hr is no more and the petition also filed and EP is closing to be deceased daughter of original D.Hr. It is noticed that she did not file any piece of paper to show the deceased daughter of original D.Hr. This EP is filed without preparing any document to show that she is LR of original D.Hr. Moreover, she is not present and no representation on her behalf. Hence EP is dismissed".

5. The learned Counsel for the petitioners herein contended

that E.P.No.531 of 2018 was dismissed on the ground that

respondent No.2 herein has not filed any document to show that

she was the daughter of the original Decree holder and it was

not dismissed for default. When an application was filed under

Order 21 rule 106 of C.P.C to set aside the said Order dated

22.02.2023, the trial Court erroneously observed that it was

dismissed for default and restored the same. In fact, it cannot

be restored by the same Court and it is for the respondents

herein to file a Civil Revision Petition against the Order dated

22.02.2023 before this Court. Considering the arguments of the

learned Counsel for the petitioners herein, this Court finds that