Telangana High Court
V.Uma Rani , Diddi Hemalatha, vs Muthineni Manohar Rao, on 18 June, 2024
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH
AT HYDERABAD
WEDNESDAY THE TWENTIETH DAY OF NOVEMBER
TWO THOUSAND AND THIRTEEN
PRESENT
HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
CIVIL REVISION PETITION No. 2345 OF 2011
Between:
Govind Rao Padiyalkar ... Petitioner
V/s.
S. Ravi Kumar Reddy ... Respondent
Counsel for the Petitioner : Sri Silomkoti Siva Kumar
Counsel for the Respondent: Sri Shyam S. Agarwal
The Court made the following: [order follows]
HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
CIVIL REVISION PETITION No. 2345 OF 2011
ORDER:
This Civil Revision Petition is filed challenging the order dt.
25-3-2011 in EA.No. 12 of 2011 in EP.No. 5 of 2010 in OS.No.
233 of 2003 on the file of the Court of XI Additional Chief Judge, City
Civil Court, [FTC] Hyderabad.
2. This Revision is preferred by the judgment-debtor, who
suffered the money-decree dt. 19-6-2007 in OS.No. 233 of 2003.
Under the said decree, he was held liable to pay a sum of
Rs.15,42,000=00 with interest and costs to the respondent/decree
holder. As this amount was not paid, EP.No. 5 of 2010 was filed by
the respondent for attachment and sale of the EP schedule property.
Notice in the EP was sent to the judgment-debtor but he did not
appear on 18-1-2011 after having received the notice. So he was set
ex-parte by the executing court.
3. He filed E.A.No. 12 of 2011 on 18-1-2011 to set aside the
said order by invoking Order-21, Rule 106 of CPC. In the affidavit
filed in support of the said E.A., the junior counsel of the judgment-
debtor stated that he was instructed by the judgment-debtor to file
vakalath on his behalf on 17-1-2011; the said day was declared a
public holiday and the matter was taken-up next day i.e., 18-1-2011;
that the said counsel had to attend certain other matters in the City
Civil Court, Hyderabad apart from the E.P.No. 5 of 2010 before XI
Additional Chief Judge, [FTC], City Civil Court, Hyderabad to file
vakalath in this E.P.; but by the time he reached the court, the matter
was called and the judgment-debtor had been set ex-parte; and
therefore the order dt. 18-1-2011 setting the petitioner ex-parte be set
aside under order 21, Rule-106 CPC.
4. The Decree-holder filed a counter opposing this relief and
contended that E.A. is filed only to delay the proceedings further.
5. By order dt. 25-3-2011, the court below allowed E.A.No. 12
of 2011 by imposing the onerous condition that the judgment-debtor
should deposit 1/4th of the decretal amount within ten weeks by 03-6-
2011 or else the application would stand dismissed.
4. Aggrieved thereby, this Revision is filed.
5. On 24-5-2011 this court directed the petitioner to deposit a
sum of Rs.2,00,000=00 to the credit of EP.No. 5 of 2010 on or before
27-6-2011 and on such deposit, directed that the attachment order dt.
18-1-2011 shall stand raised till 27-6-2011. It further directed that if
the petitioner deposits a sum of Rs.2,00,000=00, the attachment order
passed on 18-1-2011 shall not be given effect to thereafter. On 24-6-
2011, the Revision had been admitted and interim stay was granted
as prayed for.
6. The counsel for petitioner contends that the condition
imposed is onerous; that EP itself had been posted for appearance
on 17-1-2011, and that day being a public holiday, the matter was put
to 18-1-2011; there was some delay by the counsel representing
petitioner in attending the executing court and in the meanwhile, the
judgment-debtor had been set ex-parte; and therefore the judgment-
debtor had to file EA.No. 12 of 2011 under Order-21, Rule-106 of
CPC; that even though the said EA was filed on the same day on
which the judgment-debtor was set ex-parte, the court below had
imposed such onerous condition.
7. The counsel for the respondent on the other hand supported
the order passed by the court below and contended that although the
decree was passed on 19-6-2007 and was not challenged by the
judgment-debtor, his attitude is to delay and frustrate the execution of
the decree by dragging on the proceedings indefinitely. He therefore
contended that the Revision be dismissed.
8. I have noted the contentions of both parties.
9. Admittedly the E.P. was filed in the year 2010 to execute the
decree obtained by the respondent on 19-6-2007 in OS.No. 233 of
2003. The notice in the EP was served on the judgment-debtor and
as per the said notice he was directed to appear on 17-1-2011. But
17-1-2011 was a public holiday and therefore the matter was called
on 18-1-2011. The petitioner had engaged a counsel by name, Sri S.
Shiva Kumar by giving a vakalath and requesting him to file the same
in the E.P. But as the said counsel was attending the other matters in
t h e C i ty Civil Court, Hyderabad, on 18-1-2011 he could not be
present when the EP was called by the executing court. Immediately
the court set the petitioner ex-parte and ordered attachment of the
E.P. schedule property. On the same day, the counsel for the
petitioner filed an affidavit explaining the reasons for his absence at
the time when the matter was called and praying that the order dt. 18-
1-2011 setting the petitioner ex-parte be set aside.
11. It is not the case of the decree holder that the petitioner had
taken several adjournments in the E.P. Admittedly on the first day
after service of notice on the petitioner the above events occurred. It
is difficult to believe the plea of the decree-holder that delay tactics
had been adopted by the judgment-debtor. When the decree-holder
had taken three years to file the execution petition, he cannot oppose
setting aside the order dt. 18-1-2011 setting the petitioner ex-parte on
the basis of his absence on one single date of adjournment. The
attitude of the court below is most unfortunate as for a single lapse, a
party should not be penalized by a direction that he should deposit
1/4th of the decretal amount [which comes to about Rs.5,00,000=00]
as a condition in terrorium ignoring the affidavit of his counsel
explaining reasons for his absence on that day. The order of the trial
court is clearly perverse and unsustainable.
12. In view of the above facts and circumstances, the order dt.
25-3-2011 in EA.No. 12 of 2011 in E.P.No. 5 of 2010 in OS.No.
233 of 2003 is set aside. Consequently the order setting the petitioner
ex-parte on 18-1-2011 is also set aside and the attachment order by
the said court on 18-1-2011 of the EP schedule property is set
aside. The petitioner shall file his objections in the E.P. on 05-12-
2013 positively. If the petitioner does not appear through counsel or
file objections on 05-12-2013 then this Revision shall stand
dismissed. The court below shall then dispose of the E.P. within two
months thereafter. The petitioner shall co-operate with the trial
court in the early disposal of the E.P.
11. With the above directions, the CRP is allowed. No costs.
_______________________________
JUSTICE M.S. RAMACHANDRA RAO.
20-11-2013
IsL
NB: CC tomorrow .
HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
CIVIL REVISION PETITION No. 2345 OF 2013
Circulation No.
Date:20/11/2013
Court Master: I s L
Computer No.43
