Telangana High Court
Bairi Thirupathi, vs Chinthapatia Someshwar Rao on 21 January, 2025
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
CIVIL REVISION PETITION NO.3279 OF 2024
Mr. V. Venkata Maur, learned counsel for the petitioner.
ORDER:
The petitioner/Judgment Debtor No.1 (defendant No.1 in
O.S.No.709 of 2014) has assailed an order dated 18.07.2024
passed by the learned Senior Civil Judge, Warangal at
Hanmakonda, in E.P.No.46 of 2022 (Old E.P.No.42 of 2021) in
O.S.No.709 of 2014, by which the E.P. was allowed and an
attachment warrant was issued against the salary of the
petitioner under Order XXI Rule 48 of The Code of Civil
Procedure, 1908 (C.P.C).
2. The proof of service placed before the Court shows that
the notice sent to the respondent No.1/Decree Holder was
returned unserved with an endorsement "Refused". Hence, the
respondent No.1 is deemed to be served.
3. According to learned counsel for the petitioner, the
respondent No.2 is not a necessary party since the respondent
No.2 is the Judgment Debtor No.2.
4. The only point argued by learned counsel appearing for
the petitioner is that the petitioner was unaware of the ex parte
decree passed by the Trial Court in the Suit on 04.12.2017 in
favour of the respondent No.1/Decree Holder for an amount of
Rs.6,88,000/- with costs and interest from the date of the Suit
till the date of realization. Counsel submits that the
petitioner/Judgment Debtor No.1 filed an application for setting
aside the ex parte decree on 04.01.2019 i.e., before filing of the
E.P. in 2021. Counsel further submits that despite filing of the
application, the Executing Court did not take that fact into
account and proceeded to allow the E.P. by way of the impugned
order.
5. Paragraph 3 of the impugned order records the
submissions made on behalf of the petitioner/Judgment Debtor
No.1 which are to the effect that the conclusions in the E.P. are
not correct and that the Judgment Debtor No.1 filed an
application under Order IX Rule 13 of the C.P.C to set aside the
ex parte decree. The operative portion of the impugned order,
however, does not contain any finding with regard to the
application filed by the petitioner. The Executing Court simply
stated that there is no stay order of any competent Court
against the ex parte decree. There is no discussion with regard
to the fact of filing of the application for setting aside the ex
parte decree and the status of such application. The Executing
Court summarily allowed the E.P. without going into any of the
details which were relevant in light of the pending application.
6. If an application for setting aside the ex parte decree was
indeed pending as on the date of passing of the impugned order,
the Executing Court had a duty to consider the fact of filing of
any such application and come to a conclusion with regard to
the merits of such application. Instead of doing that, the
Executing Court hurriedly concluded that the E.P should be
allowed and the petitioner's salary should be attached.
7. C.R.P.No.3279 of 2024 is accordingly allowed. The
impugned order dated 18.07.2024 is set aside. The matter is
remanded to the Executing Court to hear E.P.No.46 of 2022
afresh and pass appropriate orders taking into account the
application filed by the petitioner under Order IX Rule 13 of the
C.P.C. All the parties shall place their relevant facts and
documents before the Executing Court and not take any
adjournments. The Executing Court shall hear and decide the
matter within 10 days from the date on which the petitioner
produces this order before the Executing Court which shall not
be later than 27.01.2025.
8. Miscellaneous Applications, if any, pending in this
petition stand closed. There shall be no order as to costs.
___________________________________
MOUSHUMI BHATTACHARYA, J
Date: 21.01.2025.
va
