Telangana High Court

D. Sudhakar And 2 Others vs Mannepalli Sarojini on 6 March, 2024

    * THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

          + Civil Revision Petition No.2973 OF 2022

%      06.03.2024

#      Between:


D. Sudhakar and two others

                                                    Petitioners

                              Vs.



Mannepalli Sarojini                                Respondent




! Counsel for Revision Petitioners   : Sri P.V.Krishnamachary

^ Counsel for Respondents            : Sri Thalari Ravinder Rao



<GIST:

> HEAD NOTE:

? Cases referred    :


1. 2013 (2) ALT 263
2. 2013 93) ALT 143
3. 2000 AIHC 3871
4. 2013 (11) SCC 362
5. CRP No.1036 of 2021 decided on 17.11.2021
                                  2                                 MGP,J
                                                           Crp_2973_2022




     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

           Civil Revision Petition No.2973 OF 2022
ORDER:

Aggrieved by the order dated 02.09.2022 in I.A.No.2 of

2022 in O.S.No.424 of 2022 (hereinafter will be referred as

'impugned order') passed by the learned Principal Junior Civil

Judge - cum - Judicial Magistrate of First Class at Kothagudem

(hereinafter will be referred as 'trial Court'), the

respondents/defendants filed the present Civil Revision Petition

to set aside the impugned order.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the trial Court.

3. The brief facts of the case as can be seen from the record

available before the Court are that the petitioner/plaintiff filed

O.S.No.424 of 2022 against the respondent Nos.1 to

3/defendant Nos.1 to 3 for recovery of money of Rs.4,86,000/-

and along with the suit the petitioner/plaintiff also filed I.A.No.2

of 2022 under order XXXVIII Rule 5 of the Code of Civil

Procedure for attachment of petition schedule amounts before

judgment. The brief averments of the affidavit filed in support

of the petition in I.A.No.2 of 2022 are as under:

3 MGP,J Crp_2973_2022

a) The respondent No.1/defendant No.1 is the brother of

respondent Nos.2 and 3/defedantn Nos.2 and 3. the mother of

respondents/defendants by name D. Anasuya had close

acquaintance with the petitioner/plaintiff and out of such

acquaintance, she borrowed an amount of Rs.3,00,000/- from

the petitioner/plaintiff on 25.01.2020 for her family necessities

and executed a pronote in favour of the petitioner/plaintiff on

the same day at his house to the effect of promising him to

repay the same together with agreed interest @ 24% either to

him or to his order on demand.

b) Thereafter, despite repeated demands made by the

petitioner/plaintiff, Smt. D. Anasuya did not repay the amount

and avoiding the payment on one pretext or the other. Finally

on 09.03.2022 Smt. D. Anasuya died intestate leaving the

respondents/defendants as her legal heirs and successors to

succeed her entire properties and assents and thereby the

respondents are enjoying the properties of late D. Anasuya.

Smt. D.Anasuya died without discharging the pronote amount

to the petitioner/plaintiff.

c) After the death of Smt. D.Anasuya the petitioner/plaintiff

made several oral demands to the respondents/defendant to

pay the amount but the respondents put deaf ear and avoiding 4 MGP,J Crp_2973_2022

the payment. The petitioner/plaintiff, vexed with the attitude of

the respondents/defendant, approached the respondents/

defendants on 04.08.2022 and demanded for repayment but

there was no response. Hence, the petitioner/plaintiff filed the

suit for recovery of the amount.

d) The original borrower D. Anasuya worked as J.P.A. vide

I.D.No.1051643 in V. Stage KTPS Paloncha but unfortunately

she died on 09.03.2022 while in service leaving the respondents

as her legal heirs to succeed to her estate. The respondents

submitted application before the employer of D. Anasuya to

receive death benefits of late D. Anasuya and hurried attempts

to receive the death benefits and leave the jurisdiction of the

court without paying promissory note amount to the

petitioner/plaintiff. If the respondents succeed in their

attempts, the petitioner may not realize the suit amount in

future. Moreover, the decree was sought against the estate of

the deceased lying in the hands of respondents.

4. Heard both sides and perused the record including the

grounds of revision.

5. The first and foremost contention of the learned counsel

for the revision petitioners/respondents/defendants is that the 5 MGP,J Crp_2973_2022

trial Court did not consider that the petitioner is residing in

agency area and the warrant of attachment order and the trial

Court without jurisdiction and without having any power issued

the impugned order, which is bad in law. It is further

contended that the Execution Court failed to follow the Section

136 of the Code of Civil Procedure, which lays down the

procedure in case the property is situated outside the territorial

jurisdiction of the Court and that the mode prescribed is that

order of attachment shall be sent to the District Court within

local limits of whose jurisdiction the property is situated and the

District Court thereafter shall send the order of attachment to

the subordinate court within whose jurisdiction the property is

situated for affecting the attachment. In this connection, the

learned counsel for the plaintiff filed G.O.Ms.No.64, dated

01.06.2022 of Law (LA.LA & J - Home - Courts.A2) Department

issued by the Government of Telangana. In the above said GO,

it is clearly mentioned that the Junior Civil Judge, Kothagudem

can exercise jurisdiction over the areas of entire revenue

mandals of Kothagudem, Palvanch, Burgampahad,

Sujathanagar, Dammapeta and Aswaraopet and Nellipaka

Village of Aswapuram Mandal. Admittedly, the respondents and

petitioners are residents of Paloncha. Thus, in the case on

hand, the trial Court can exercise its jurisdiction in passing the 6 MGP,J Crp_2973_2022

impugned order. It is further evident from the impugned order

that trial Court directed the Bailiff of the Court that after receipt

of notice by the respondents/defendants the attachment

warrant may be served to the garnishee i.e., the Senior

Accounts officer, V and VI Stage, KTPS Paloncha, Bhadradri -

Kothagudem District from and out of death benefits of

Rs.7,00,000/- i.e., earned leave encashment, leave salary,

bonus, arrears payable to D. Anasuya, who worked as JPA.

Thus, the property is situated within the territorial jurisdiction

of the trial Court. Therefore, the above two contentions of the

learned counsel for the revision petitioners holds no water.

6. The other contention of the learned counsel for the

revision petitioners is that the trial Court without issuing any

notice and opportunity to the revision petitioners by violating

the principles of natural justice, straight away passed the

impugned orders. It is further contended that the trial Court

failed to see that the promissory note dated 25.01.2020 alleged

to have been executed by the mother of the respondents is rank

forgery and without verifying the documents. The contention of

the plaintiff is that the respondents have filed an application

before the employer of D. Anasuya to receive death benefits of

late D. Anasuya and hurried attempts to receive the death 7 MGP,J Crp_2973_2022

benefits and leave the jurisdiction of the court without paying

promissory note amount to the petitioner/plaintiff. It is not the

case of the respondents that they did not file any such

application. If the respondents/defendants succeed in their

attempts, the petitioner/plaintiff may not realize the suit

amount in future. Since the respondents/defendants have

contended that the promissory note is forged, the onus of

proving the same is on them and such burden can be

discharged by the respondents/defendants at the time of trial.

By the time, the trial begins, there is every chance of

respondents/defendants claiming the death benefits of their

deceased mother and thereafter there will not be any probability

to the petitioner/plaintiff for claiming the suit amount from

such death benefits of deceased borrower. It is to be seen that

the trial Court has directed the Bailiff that only after failure of

the respondents/defendants to furnish security to the suit

amount, the warrant may be served on the garnishee i.e., the

employer of deceased mother of the respondents. At this stage,

even the petitioner/plaintiff has no right or authority to claim or

withdraw the said amount. After receipt of the notice, if the

respondents/defendants, fail to furnish any security as directed

by the trial Court, the Bailiff would proceed ahead in serving

warrant of attachment on the garnishee i.e., the employer of 8 MGP,J Crp_2973_2022

respondents' mother with an intention to safeguard and protect

the death benefits of its employee. Thus, the contention of the

respondents/defendants that the trial Court passed the

impugned order without issuing any notice to them is

unsustainable.

7. The learned counsel for the revision

petitioners/defendants contended that the execution court

failed to follow the Rule 35 of the Agency Rules and passed the

attachment order of immovable property situated in agency area

of the petitioner is bad in law. In support of this contention, the

learned counsel for the revision petitioners relied upon a

decisions of the High Court of Andhra Pradesh in Puligujju

Vasantha Rao v. City Union Finance Limited, Bhadrachalm,

represented by its authorized signatory 1, P. Ramakrishna

And another v. M/s. Shriram City Union Finance Limited,

Bhadrachalam represented by its Authorized Signatory and

GPA Holder V. Vasudeva Rao 2, Madakam Venkateswara Rao

and others v. Subordinate Judge, Kothagudem and

another 3. The learned counsel for the revision petitioners

further relied upon a decision of the Honourable Supreme Court

in Nagarjuna Grammena Bank and others v. Medi Narayana

1 2013 (2) ALT 263 2 2013 93) ALT 143 3 2000 AIHC 3871 9 MGP,J Crp_2973_2022

and others 4, wherein it was observed that jurisdiction of the

Civil Courts functioning in the schedule areas from 1972

onwards as illegal and void. However, as stated supra, in view

of G.O.Ms.No.64, dated 01.06.2022 of Law (LA.LA & J - Home -

Courts.A2) Department issued by the Government of Telangana,

the trial Court has power to exercise its jurisdiction in

Palvancha, where the plaintiffs, defendants and the office of

deceased mother of the defendants are residing. Hence, it

cannot be said the trial Court has no jurisdiction to pass the

impugned order.

8. Furthermore, In Karam Babu Rao v. Baddi Srisailm 5

this Court observed as under:

"Rule 35 of Telangana Agency Rules, 1924 applies only to the cases where the execution is in relation to attachment of immovable property situated within the agency tracts and the obvious intention behind making such stipulation is to ensure that no immovable property situated within the agency tracts is attached or sold without the same being brought to the notice of the agent. In the instant case, the subject matter is attachment of salary of the petitioner and the direction is given to the employer of the petitioner to attach the petitioner's salary subject to the provisions of Section 60 of the Code of Civil Procedure, 1908 and that the attachment does not in any manner relate to the agency tracts. Merely by reason of the petitioner working in the Agency Area, Rule 35 of the Agency Rules does not get attracted."

9. In view of the principle laid down in the above said

decision, Rule 35 of the Telangana Agency Rules, 1924 is

applicable only in respect of immovable property situated within

4 2013 (11) SCC 362

10 MGP,J Crp_2973_2022

the agency tracts is attached or sold without the same being

brought to the notice of the agent. It is pertinent to note that

the property annexed to the warrant was retirement benefits of

deceased mother of respondents and the same does not come

under the ambit of immovable properties, as such Rule 35 of

Telangana Agency Rules, 1924 do not attract.

10. In view of the above facts and circumstances, this Court