PENDING APPEAL, NO SUIT FOR DECLARATION AND CANCELLATION OF DECREE AND JUDGEMENT NOT MAINTAINABLE = It is on account of persons like the petitioner, that the people are losing faith in the judicial system and they are even preferring the anti-social elements to recover the amounts, than approaching the Courts.= The petitioner suffered decree on 28.04.2004 for a sum of about Rs.15 lakhs. In the appeal preferred by him, an order of interim stay was passed on condition that the petitioner shall deposit 50% of the decreetal amount. He did not care to comply with the condition, and thereby, the order of stay came to be vacated. When the execution proceedings were about to be initiated, the petitioner filed O.S.No.167 of 2005, with a prayer to set aside the decree. It is just unimaginable how he could have filed such a suit, when he has preferred an appeal against the decree in O.S.No.813 of 2007. The suit was dismissed and appeal was preferred. There again, this Court has shown indulgence in passing an interim order on condition that the petitioner shall deposit 50% of the decreetal amount. That condition was not complied with. As there is no alternative, the 1st respondent proceeded with the E.P.= The Executing Court passed a detailed order, after contest. It came to the conclusion that though the petitioner is possessed of adequate means, he is neglecting to pay the amount and, accordingly, directed his arrest. The petitioner has grossly misused the process of the Court. By now, he has provided work for the past 1 1/2 decade to various courts and successfully avoided payment of amount under the decree. The trial Court had also discussed the matter at length and found, the petitioner's sole object is to defeat the interest of the 1st respondent.

REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9794

THE HON'BLE SRI JUSTICE  L. NARASIMHA REDDY      

CIVIL REVISION PETITION No.5500 of 2010  

02-04-2013

Dr.D.V.Prasad

B.Murali Krishna and two others

Counsel for the petitioner :  Sri R.K.Suri

Counsel  for the Respondents:  Sri V.Srinivas

<Gist :

>Head Note:

?Cases referred:      
Nil

ORDER:
        It is on account of persons like the petitioner, that the people are losing faith in the judicial system and they are even preferring the anti-social elements to recover the amounts, than approaching the Courts.

2.      The 1st respondent filed O.S.No.813 of 1997 in the Court of the IV Senior
Civil Judge, City Civil Court, Hyderabad, against the petitioner and respondent
Nos.2 and 3, for recovery of amount, referable to trade between them. The suit
was decreed on 28.04.2004. Aggrieved by that, petitioner filed
CCCA No.191 of 2004 before this Court. An order of interim stay of execution of
the decree was passed on condition that the petitioner shall deposit 50% of the
decreetal amount within the stipulated time. The condition was not complied
with, and thereby, the stay stood vacated.

3.      Even   while   CCCA No.191 of 2004   was   pending,  the
petitioner filed O.S.No.167 of 2005 in the Court of the Chief  Judge, City Civil
Court, Hyderabad, with a prayer to set aside the decree in O.S.No.813 of 1997,
on the ground that it was obtained by playing fraud. That suit was dismissed on
04.07.2006.  CCCA No.268 of 2006 filed against the same is pending before this
Court.  There again, an order of stay of execution of the decree in O.S.No.813
of 1997 was passed on condition that the petitioner shall deposit half of the
decreetal amount. The petitioner did not comply with the condition and the
interim order ceased to be in force.

4.      The first respondent filed E.P. No.79 of 2008, under Order XXI Rules 37
and 38 of CPC, with a prayer to detain the petitioner in civil prison alleging
that despite having adequate resources, he did not pay the decreetal amount. On
contest, the E.P. was allowed on 23.06.2010.

5.      The petitioner filed E.A.No.237 of 2010, with a prayer to review the order
in the E.P.  It was pleaded that though the E.P. was filed initially for
attachment of the schedule properties, it was treated as one for arrest of the
judgment debtor and that there are certain errors in the order. The 1st
respondent opposed


the same by filing a counter. The executing Court dismissed the E.A. on
19.10.2010. Hence, this Civil Revision Petition.

6.      Sri R.K. Suri, learned counsel for the petitioner, submits that the
executing Court ought to have reviewed the order, when it was pointed out that
there are certain errors in it. He contends that there was no justification for
the 1st respondent in seeking arrest of the petitioner, when several items of
immovable properties owned by the petitioner are available to be proceed
against. He contends that several errors have crept in the orders passed by the
executing Court.

7.      Sri Vedula Srinivas, learned counsel for the 1st respondent, submits that
the petitioner has misused the process of the Court and though the decree was
passed way back in the year 2004, not a rupee could be recovered from him. He
further submits that if really the petitioner is in possession of the immovable
properties, he could have voluntarily paid the amount or sold them for payment
of the amount.

8.      The petitioner suffered decree on 28.04.2004 for a sum of
about Rs.15 lakhs. In the appeal preferred by him, an order of interim stay was
passed on condition that the petitioner shall deposit 50% of the decreetal
amount.
 He did not care to comply with the condition, and thereby, the order of
stay came to be vacated. 
When the execution proceedings were about to be 
initiated, the petitioner filed O.S.No.167 of 2005, with a prayer to set aside
the decree. 
It is just unimaginable how he could have filed such a suit, when he
has preferred an appeal against the decree in O.S.No.813 of 2007. 
The suit was
dismissed and appeal was preferred.  
There again, this Court has shown
indulgence in passing an interim order on condition that the petitioner shall
deposit 50% of the decreetal amount. 
That condition was not complied with. As
there is no alternative, the 1st respondent proceeded with the E.P.

9.      The Executing Court passed a detailed order, after contest. It came to the conclusion that though  the petitioner is possessed of adequate means, he is neglecting to pay the amount and, accordingly, directed his arrest.

10.     The petitioner   did  not  file any revision against the order

passed in the E.P.  
However,   he   has   filed a review before the
executing Court itself.  The grounds for review are very limited and even if a
second view is based on merits, it cannot constitute the basis for review.

11.     It is rather interesting to note that the petitioner states that he has
several items of properties and the E.P. ought to have been filed for attachment
of those properties. 
The dubious nature of his plea is evident from the fact
that in spite of holding the properties, he did not care to deposit even a
fraction of the decreetal amount. 
In a litigation that is spread over for the
past 1 1/2 decade, he is so mean in his approach that certain clerical errors
that crept into the order in the  E.P. have been pointed out, as grounds of
review. 
In all fairness to the petitioner, the executing Court has corrected
those mistakes, but refused to interfere with the order passed in the E.P.

12.     The petitioner has grossly misused the process of the Court. By now, he
has provided work for the past 1 1/2 decade to various  courts  and
successfully  avoided  payment  of   amount under the decree. The trial Court
had also discussed the matter at length and found, the petitioner's sole object
is to defeat the interest of the 1st respondent.

13.     Hence, the Civil Revision Petition is dismissed, with costs of Rs.10,000/-
(Rupees Ten thousand only). It is directed that if the petitioner fails to pay
the costs, within a period of one month from today, it shall be treated per se
as contempt of this Court.
__________________________  
L.NARASIMHA REDDY, J  
2nd April, 2013

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