Telangana High Court
M Nageshwar Rao,Died Per Lrs vs M.A.Samad, Hyd on 21 September, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Civil Revision Petition No.417 OF 2016
Between:
M.Nageshwar Rao (died) per LRs. ... Petitioner
And
M.A.Samad ... Respondent
DATE OF JUDGMENT PRONOUNCED: 21.09.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ C.R.P. No. 417 OF 2016
% Dated 21.09.2024
# M.Nageshwar Rao (died) per LRs ... Petitioner
And
$ M.A.Samad ... Respondent
! Counsel for the Petitioner: Sri D.Madhava Rao
^ Counsel for the Respondent: Sri M.R.S.Srinivas
>HEAD NOTE:
? Cases referred
1.MANU/TN/0443/2008
2.MANU/PH/0633/2005
3
THE HON'BLE SRI JUSTICE K.SURENDER
CIVIL REVISION PETITION No.417 of 2016
ORDER:
1. This Civil Revision Petition is filed by the decree holder
(petitioner herein) against orders dated 10.12.2015 in E.A.No.49
of 2015 in E.P.No.38 of 2013 whereby the learned trial Judge
refused the prayer of the decree holder to issue account payee
cheque for Rs.12,03,518/- out of the amount of Rs.14,93,980/-
deposited as security in E.A.No.119 of 2014.
2. E.A.No.119 of 2014 was filed by the judgment debtor
(respondent herein) to deposit the entire decretal amount before
the trial Court towards security and to stall the proceedings till
the appeal is disposed off in accordance with the provisions of
Order 41 Rule 6(2) of CPC.
3. Briefly, the back ground of the case is that the suit was filed
by the plaintiff-M.Nageshwar Rao for specific performance of
agreement of sale directing the defendant in the suit to execute
the registered sale deed in favour of the plaintiff in respect of the
suit schedule property or in the alternative to return the advance
amount of Rs.4,75,000/- along with interest at the rate of 18%
per annum which works out to Rs.7,18,628/- vide O.S.No.1634
of 2006. The said suit for specific performance was dismissed,
however, alternative relief was granted by decreeing the suit to
refund an amount of Rs.7,18,628/- vide judgment dated
25.08.2010.
4. The judgment debtor/defendant filed appeal vide CCCA
No.22 of 2011 before this Court. CCCA.M.P.No.44 of 2011 was
filed whereby this Court granted interim stay of all further
proceedings including execution of judgment. CCCAMP No.304 of
2011 was again filed by the decree-holder to vacate the interim
order passed in CCCA.M.P.No.44 of 2011. This Court by order
dated 28.06.2011 made the interim stay absolute subject to the
condition of judgment debtor depositing half of the decreetal
amount within a period of eight weeks. On such deposit, the
plaintiff/decree holder was permitted to withdraw without
furnishing any security. Further, this Court also held that
interim stay would stand vacated and it is open for the decree-
holder to proceed with the execution of the decree.
5. E.P.No.41 of 2011 was filed seeking attachment of the suit
schedule property and to conduct sale and realize the EP
amount. Learned Judge at Zaheerabad, to which the case was
transferred for execution, conducted enquiry and passed orders
issuing attachment warrant of the execution of petition schedule
property.
6. In execution of the warrant, proclamation was made and
sale notice was issued in respect of the property on 28.04.2014.
Thereafter, the judgment debtor deposited an amount of
Rs.14,93,980/- by way of two demand drafts in the Court below
and also informed regarding pendency of the appeal vide CCCA
No.22 of 2011. Pursuant to the deposit of the amount, sale was
stopped. E.A.No.119 of 2014 was filed to permit the judgment
debtor to deposit the entire decreetal amount as security in
accordance with the order 41 Rule 6(2) of CPC. E.P.No.38 of 2013
which was filed, was closed since the judgment debtor deposited
more than the E.P amount.
7. Questioning the orders passed in E.P.No.38 of 2013 and
E.A.No.119 of 2014, CRP No.4664 of 2015 and CRP No.4649 of
2015 were filed before this Court. This Court by order dated
06.11.2015 while disposing of the petitions at the stage of
admission, directed the Court below to consider objections by the
judgment debtor in the cheque petition and decide the cheque
petition in accordance with law without being influenced by
observations made in the order.
8. Pursuant to the orders passed in CRP Nos.4664 and 4649 of
2015, I.A.No.49 of 2015 was filed in E.P.No.38 of 2013. Learned
judge dismissed the petition of the decree holder finding that
since the amount was deposited as security, the decree-holder is
not entitled to withdraw the amount by presenting the cheque
petition until appeal is disposed off.
9. Learned counsel appearing for the revision petitioner would
submit that the petition filed under Rule 230 and 232 of Civil
Rules of Practice ought to have been ordered and ordered
issuance of cheques to the decree-holder. Though this Court in
CCCA No.22 of 2011 had asked to deposit half of the decreetal
amount, failing which the stay granted earlier would stand
vacated, however, no such deposit was made. Accordingly, there
is no stay subsisting in CCCA No.22 of 2011. Further, the
learned Judge vide impugned order did not refer to the fact that
there was no stay in CCCA No.22 of 2011. Lastly, counsel
submitted that having obtained decree and thereafter going
through the process of auction etc., till date, the decree holder is
not in a position to get back his amount.
10. Learned counsel relied on the following judgments:
i) Embassy Hotels (Private) Limited v. Benjamin
(MANU/TN/0443/2008)
ii) Bhagwan Singh and others v. Puran Chand
(MANU/PH/0633/2005)
11. On the other hand, learned counsel appearing for the
judgment debtor would submit that under Order 41 Rule 6, the
amount has been deposited and according to the said provision,
stay would be subsisting till disposal of the appeal. The amount
cannot be paid to the decree-holder. He relied on the following
judgments:
i) P.Satyanarayana v. G.Rama Subbulu (ALT Vol.XVI 1965-
II (CRP No.1115 of 1963, dated 26.08.1965).
ii) Krishan Kumar v. State Bank of Patiala and others
(AIR 2006 PH 22), wherein it is held as follows:
"8. Even in a situation where the stay has been declined by
the appellant Court under Rule 5 of the Order 41 of the Code,
the executing Court is bound in law to stay the sale. The only
discretion the execution court enjoys is to impose such
conditions, or insist upon the deposit of the entire decretal
amount, as may be deemed appropriate.
9. A perusal of the impugned order clearly shows that the
executing Court was clearly oblivious of the provisions of
Rule 6(2) of Order 41 of the Code. It has completely lost sight
of the fact that the aforesaid provision is mandatory in
nature."
iii) P.S.L.Ramanathan Chettiar and others v.
RM.P.RM.Ramanathan Chettiar (1968 AIR 1047).
12. For the sake of convenience, Order 41 Rule 6(2) of CPC is
extracted as under:
"6. Security in case of order for execution of decree
appealed
from.
(1) ......
(2) Where an order has been made for the sale of immovable
property in execution of a decree, and an appeal is pending from
such decree, the sale shall, on the application of the judgment-
debtor to the Court which made the order, be stayed on such terms
as to giving security or otherwise as the Court thinks fit until the
appeal is disposed of."
13. This Court, by order dated 06.11.2015 in CRP Nos.4664 &
4649 of 2015, observed as follows:
"I have perused the material papers including the impugned order
dated 19.02.2015 both in E.P and E.A. No E.P is pending as on
today and sale conducted was already set aside. Therefore, I feel
by directing the court below to consider the objections raised by
J.Dr in the cheque petition and decide cheque petition in accordance
with law, these revisions can be disposed of.
With the above observation, these two revisions are disposed of at
the admission stage, directing the trial Court to dispose of cheque
petition on merits by taking into consideration all the objections
without being influenced by any observations made in this order."
14. As seen from the impugned order, learned Judge found that
the decree-holder was not entitled to withdraw the amount until
the appeal is disposed off. A reading of the observations of this
Court, it is clear that the Court was directed to consider the
objections in the cheque petition and decide the cheque petition
accordingly. Order 41 Rule 6(2) of CPC confines to staying of
'sale' of the property and does not restrict entertaining the
cheque petition or refusal or denying payment of the amount in
the cheque petition before the Executing Court from the amount
deposited towards security. Needless to say there cannot be sale
of the immovable property since deposit is already made as
security.
15. The fact remains that directions of this Court in CCCA
No.22 of 2011 to deposit half of the decreetal amount and
pursuant to such deposit, decree-holder being entitled to
withdraw said amount without security, admittedly, the direction
was not followed. There is no stay of the decree passed on
25.08.2010, however, the stay is confined to the sale of
immovable property in the execution proceedings pending appeal,
in accordance with Order 41 Rule 6(2) of CPC.
16. Keeping in view the present circumstances, this Court finds
that the impugned order is incorrect and accordingly, set aside.
The trial Court is directed to issue account payee cheque for
Rs.12,03,518/- in favour of the legal heirs of the petitioner
herein, who were brought on record by this Court vide order
dated 17.12.2021 in I.A.No.3 of 2021. Needless to say, this order
will not preclude the decree-holders from filing Execution Petition
seeking any amount i.e., due over and above i.e., Rs.12,03,518/-.
Under no circumstances, the immovable property mentioned in
the schedule of warrant of sale under Order 21 Rule 66 in
E.P.No.38/2013 pending disposal of CCCA No.22/2011 be
subjected to sale.
17. Accordingly, Civil Revision Petition is allowed. There shall be
no order as to costs. Consequently, miscellaneous petitions, if
any, shall stand disposed off.
__________________
K.SURENDER, J
Date :21.09.2024
Note: LR copy to be marked.
B/o.kvs
