Telangana High Court
Mohd Jaleeluddin vs Mohd Abdul Saleem on 10 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
Civil Revision Petition No.5868 of 2017
ORDER:
This Civil Revision petition is filed aggrieved by the
order dated 19.09.2017 passed in E.P.No.36 of 2015 in
O.S.No.44 of 2009 on the file of Senior Civil Judge, Nizamabad.
2. Heard Sri Umesh Patil, learned counsel appearing on
behalf of Sri G.Dinesh Patil, learned counsel for the petitioner
and Ms.P.Kalpana on behalf of Sri P.Bhaskar, learned counsel
for the respondent.
3. Petitioner herein is the judgment debtor and
Respondent is the decree holder. For convenience, the parties
are hereinafter referred to as they are arrayed before the
executing Court.
4. Brief facts leading to filing of present case are that
initially the suit was filed by the respondent in O.S.No.44 of
2009 against the petitioner herein for eviction on the file of
Senior Civil Judge, Nizamabad. The matter was settled amicably
CRP.No.5868 of 2017
between the parties and the decree-holder obtained an award
against the judgment debtor in O.S.No.44 of 2009 on
08.09.2010 before the Lok Adalat Bench at Nizamabad for
eviction of the suit schedule property, arrears of rent etc. The
operative portion of the award reads as follows:-
1. That the plaintiff is the owner of the House bearing
Municipal No.9-151, situated at Ahmedpura colony,
Nizamabad and the defendant is the tenant of the said
house in ground floor and first floor.
2. It is agreed that the defendant/tenant paid the rent an
amount of Rs.7,000/- (Rs. Seven Thousand only) per
month till June, 2010 to the plaintiff.
3. It is agreed that the defendant/tenant shall remain as
tenant in the suit schedule property up to August, 2010
and the defendant/tenant shall vacate the suit schedule
property by the end of August, 2010 without fail and hand
over the vacant possession of the suit schedule property to
the plaintiff in good condition and in case there is found
any damage to any structure, windows, doors, flooring,
electrical wiring, switches etc., then the defendant shall
repaid the same with his own costs. If the
defendant/tenant fails to vacate the premises by the end
of august, 2010 the rent has enhanced @ Rs.8,000/- per
month with effect from September, 2010.
4. That the defendant/tenant shall pay the electricity
consumption charges to the Electricity Department
regularly in respect of the Service connection Nos. 13070
L2 MM3/5 and 74205 L2 and during the period of
tenancy, if any pilferage act is done, the defendant is
solely responsible for the same.
5. The judgment debtor did not vacate the suit schedule
property contrary to the terms of award. Therefore, the
respondent herein filed E.P.No.36 of 2015 in O.S.No.44 of 2009
under Order XXI Rule 7 for arrest and detention of the
judgment debtor and for decretal amount. The judgment debtor
is liable to pay arrears of rent at Rs.8,000/- per month from
September, 2011 to August, 2013. It is further averred in the
E.P. that the petitioner is also liable to pay electricity charges of
Rs.1585/-, water charges of Rs.2,100/- for the period from
November 2011 to July, 2013 and damages caused to the
property at Rs.15,000/- apart from rent of Rs.1,92,000/-.
6. The judgment debtor filed a counter in the said E.P.
contending that he vacated the suit schedule property on
30.07.2010 itself and handed over the vacant possession of the
same to the decree holder and therefore, the decree holder is
not entitled to collect rent, electricity charges, water charges
and damages Rs.1,27,000/-.
7. During the course of enquiry, the decree-holder
examined himself as PW1 and another witness as PW2 and got
marked Ex.A1 document. On behalf of JDR, he examined
himself as RW1 and got examined another witness as RW2.
However, no documents were marked.
8. The Execution Court after due consideration of
pleadings, documents on record allowed the E.P. vide order
dated 19.09.2017 and directed the JDR to pay Rs.1,92,000/- to
the decree holder within a month from the date of order, failing
which arrest warrant will be issued to the JDR for his
detention. Though the JDR stated that he vacated the premises
on 30.07.2010 and handed over the possession to the decree
holder, as no material is placed before the Execution Court, the
said Court came to the conclusion that the JDR did not vacate
the premises. Further, the oral testimony of PW1 supported
that the judgment debtor did not vacate the subject premises
and so, he got the JDR evicted through process of law and got
marked Ex.A1-certified copy of panchanama, dated 29-07-2013
and the said fact was also corroborated by an independent
witness, who is examined as PW2. The schedule property was
delivered to the decree holder as per warrant issued by the
Court by breaking open the lock. Therefore, the trial Court did
not accept the contention of the JDR that he vacated the
premises on 30.07.2010.
9. Learned counsel for petitioner by reiterating the
contentions raised would submit that the Execution Court erred
in dismissing the Execution Petition and passing the impugned
order and further contended that Execution Court also failed to
take into consideration the guidelines of Hon'ble High Court in
Jolly George Varghese and another vs. The Bank of Cochin 1,
R.J.V.Sastry Vs. Bank of India 2 and Kalindindi Rama Raju
vs. Vijaya Bank 3, before allowing the execution petition,
therefore, order challenged under this revision is liable to be set
aside.
10. Learned counsel for petitioner also submitted that
Execution Court erred in neither holding proper enquiry nor
discharging the statutory obligation contemplated under Order
(1980) 2 SCC 360
1978 SCC online AP 17
2001 SCC online AP 562
XXI, Rules 31, 37, 39, 40 of CPC, as such, impugned order is
illegal and unenforceable and was passed without following due
procedure as contemplated under the law, therefore on this
ground also, the impugned order is liable to be set aside.
11. Per contra, the learned counsel for respondent would
submit that the order passed by the Execution Court is proper
and based upon the evidence and material, pleadings,
particularly the panchanama, dated 29.07.2013, by which, the
subject property was delivered to the Decree Holder. Finally, he
contended that there are no grounds to set aside the order and
prayed to dismiss the same.
12. A perusal of the impugned order passed by the
Execution Court would show that the Execution Court has
considered the evidence placed on record, more particularly, the
evidence of RW1. The RW1-Judgment debtor in his cross
examination admitted that he was doing real estate business as
well as sale of submersible motors. He nowhere stated that he
has no means to pay the decretal amount and therefore, the
Court has come to conclusion that the JDR despite having
sufficient means, intentionally failed to pay the decretal
amount.
13. There is no dispute with regard to the ratio laid down in
judgment referred to by the learned counsel for petitioner in
Jolly George Varghese (1 supra) with regard to arrest of JDR.
However, in the present case Execution Court has recorded
specific reasons for allowing the Execution Petition and
consequently, issued arrest warrant in view of default by JDR in
payment of decretal amount, despite being solvent which is
evident from the evidence on record that he was a businessman
engaged in real estate as well as sale of submersible motors.
Therefore, the decision of Jolly George Varghese (1 supra),
referred to by the petitioner, has no application to the facts of
the present case.
14. Taking into consideration the reasons recorded by the
executing Court, this Court does not find any merit in the Civil
Revision Petition and further, the petitioner failed to point out
any irregularity, illegality committed by Execution Court to
interfere with the impugned order and therefore, the Civil
Revision Petition fails and is accordingly, liable to be dismissed.
15. At this stage, the learned counsel for petitioner
requested some time to pay the balance amount. Accordingly,
the petitioner is granted two months time to pay the balance
amount from today.
16. Accordingly the Civil Revision Petition is dismissed. No
order as to costs.
17. As a sequel, miscellaneous applications pending if any,
shall stand closed.
____________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 10.04.2024.
BV
