Telangana High Court
CRP/1312/2010 of Kalva Satyanarayana Vs Addagalla Chandrudu on 29 December 2010
L. NARASIMHA REDDY CIVIL REVISION PETITION No.1312 of 2010 ORDER: The respondent has filed O.S. No.256 of 2006 in the Court of the Principal Senior Civil Judge, Nandyal against the petitioner for recovery of amount on the basis of a promissory note. The suit was decreed on 20.9.2007. Even
HON’BLE SRI JUSTICE L. NARASIMHA REDDYCIVIL REVISION PETITION No.1312of 2010
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ORDER:
The respondent has filed O.S. No.256 of 2006 in the Court ofthe Principal Senior Civil Judge, Nandyal against the petitioner forrecovery of amount on the basis of a promissory note. The suit wasdecreed on 20.9.2007. Even after the decree became final, thepetitioner did not pay the suit amount. Therefore, the respondent filedE.P. No.129 of 2008 under Rules 37 and 38 of Order 21 of C.P.C. Healleged that though the petitioner is possessed of adequate means, hedid not pay the decreetal amount. The E.P. was opposed by thepetitioner. He stated inter alia that an application under Order 38 Rule5 was filed along with the suit and while resisting the order ofattachment before judgment, he furnished security in the form ofSavings Certificates to the tune of Rs.1,38,000/-. He contends that therespondent filed the application under Rules 37 and 38 of Order 21 ofC.P.C., with a view to harass him.
Herd Sri B.S. Reddy, learned counsel for the petitioner and Sri N. Srirama Murthy, learned counsel for the respondent.
An application under Rules 37 and 38 of Order 21 of C.P.C. isfiled almost as a last resort of a decree holder. In case, the decreeholder is aware of the fact that the judgment debtor holds anyproperties, steps are taken for bringing the same to sale. In the instantcase, the respondent filed an application under Order 38 Rule 5 with aprayer to attach all the immovable properties. After receiving thenotice, the petitioner, at the initial stage of suit, furnished security to thesatisfaction of the Court below by deposing Savings Certificates for asum of Rs. 1,38,000/-. If the security remained with the Court, it wasun-understandable as to how and why the respondent filed anapplication under Rules 37 and 38 of Order 21 of C.P.C. TheExecuting Court ought to have verified the record. The procedure adopted by the Executing Court cannot be countenanced.
While issuing notice before admission, this Court granted stayon condition that the petitioner deposits half of the decreetal amount infour weeks. The condition is said to have been complied with.
Hence, the C.R.P. is allowed and the order under revision is setaside subject to the condition that :
(a) It shall be open to the respondent to withdraw the amount,which is deposited by the petitioner in compliance with theinterim order passed by this Court. which is deposited by the petitioner in compliance with theinterim order passed by this Court.
(b) The Executing Court shall permit the petitioner to encashthe Savings Certificates said to have been deposited withthe Court and the petitioner in turn shall deposit the balanceof the decreetal amount within six weeks from today. the Savings Certificates said to have been deposited withthe Court and the petitioner in turn shall deposit the balanceof the decreetal amount within six weeks from today.
There shall be no order as to costs.
DATE: 29[th] December, 2010
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L. NARASIMHA REDDY,J
Note:Furnish c.c. in one week.B/opnb