Telangana High Court
CRP/3207/2013 of The Yemmiganur Spinning Mills Limited Vs The Yemmiganur Cooperative Stores Limited on 30 December 2013
COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND THIRTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.3207 of 2013 Between The Yemmiganur Spinning Mills Limited, Kurnool. …PETITIONER AND The
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
MONDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND THIRTEENPRESENT
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
CIVIL REVISION PETITION No.3207 of 2013
Between
The Yemmiganur Spinning Mills Limited, Kurnool.
AND
…PETITIONER
The Yemmiganur Co-Operative Stores Limited, Kurnool and others.
…RESPONDENTS
Counsel for the Petitioner: MR. A.K. JAYA PRAKASH RAO
Counsel for the Respondents: MR. K. RAJANNA
The Court made the following:
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ORDER:
Heard both sides.
2. Petitioner is judgment debtor No.2. Respondent No.2 herein filed asuit, O.S.No.51 of 2001, on the file of the Senior Civil Judge. Adoni, seekingrecovery of Rs.3,22,101/- with costs and interest against five defendants.The claim of the respondent/plaintiff is principally against the first defendantin the suit but in the array of defendants, the Managing Director andChairman and Executive Director were separately shown as defendants 1
and 2. It is also stated that the Managing Director died pending the suit andsurprisingly, the legal representatives were brought on record as defendants3 to 5.
3. I am unable to appreciate as to how the legal representatives of theManaging Director could be brought on record when the claim is against thecompany. The said suit was contested by defendant No.4, who filed a writtenstatement. It appears that all the defendants were set ex parte on 20.12.2001and thereafter, the suit came to be decreed on 13.03.2007, which is soughtto be executed by filing EP.No.1 of 2011 by the respondent/decree holder. Inthe said execution petition, the executing Court ordered for sale of propertiesof the defendants by directing proclamation of sale to be made by26.07.2013. Aggrieved thereby, the present revision is filed by judgmentdebtor No.2.
4. On 24.07.2013, while issuing notice to respondent No.1, this Court granted interim stay of all further proceedings subject to conditionof the petitioner depositing half of the remaining decretal amount within onemonth. It appears that earlier thereto the petitioner had paid part of thedecretal amount amounting to Rs.2,20,000/- and hence, direction dated24.07.2013 was for paying half of the remaining amount. On 27.09.2013,after hearing both sides, a further order was passed by this Court bymodifying the earlier order as under:
“There shall be interim stay of all further proceedings in E.P.No.1 of2011 on the file of Senior Civil Judge, Adoni for a period of fourweeks subject to the petitioner paying half of the remaining decretalamount to respondent No.1 – decree holder within three weeks.”
The said order was complied with by paying the amount by banker’scheque on 14.11.2013 and hence, time was extended up to 14.11.2013 byfurther order of this Court dated 19.11.2013.
Revision petition has, thereafter, been heard on more than one occasion.
5. It is evident from the facts that the suit claim, which is primarily against the petitioner’s spinning mill, has virtually remained uncontested by itsofficers.
6. Learned counsel for the petitioner states that because of the death ofthe Managing Director, pending the suit, the aforesaid suit remaineduncontested. Learned counsel also states that application was filed to setaside ex parte judgment and decree along with an application under Section5 of the Limitation Act, which are pending before the Court below inCFR.Nos.4827 and 4828 of 2013 respectively. Learned counsel alsosubmits that out of the total EP amount of Rs.6,87,905/-, as on the date ofEP an amount of Rs.4,53,953/- is paid and that the petitioner is ready andwilling to pay the balance amount provided an opportunity is given to them tocontest the suit on merits.
7. Evidently, the first defendant, against whom the decree is sought beinga company represented by its officers, has failed to contest the suit. Theliability of the first defendant to pay the amount claimed is also disputed. Since the first defendant is now seeking an opportunity to contest the suit, onmerits, after complying with the decree, in my view, the interest ofsubstantial justice would be met, if such an opportunity is granted to the petitioner provided the petitionercomplies with the condition of payment of entire decretal amount to the firstrespondent/decree holder. Hence, proceedings in EP relating to sale, asproposed, under the order of the executing Court dated 21.06.2013 shallremain in abeyance subject to the following conditions:
1. Petitioner shall pay the entire balance decretal amountto the first respondent/decree holder with interest on orbefore 31.03.2014.to the first respondent/decree holder with interest on orbefore 31.03.2014.
2. On production of proof of payment, as aforesaid, thetrial Court shall number the applications, beingCFR.Nos.4827 and 4828 of 2013, pending before thetrial Court under Section 5 of the Limitation Act andunder Order IX Rule 13 CPC respectively, shall standallowed and the petitioner shall be permitted to contesttrial Court shall number the applications, beingCFR.Nos.4827 and 4828 of 2013, pending before thetrial Court under Section 5 of the Limitation Act andunder Order IX Rule 13 CPC respectively, shall standallowed and the petitioner shall be permitted to contest the suit form the stage at which the petitioner was setex parte.
3. On proof of payment of balance of the decretalamount, the respondent shall file a satisfaction memobefore the executing Court and thereafter, theexecution proceedings in EP.No.1 of 2011 shall beclosed by recording the full satisfaction. In the event ofdefault committed by the petitioner, the executing Court shall be free to proceed with theexecution in accordance with law.amount, the respondent shall file a satisfaction memobefore the executing Court and thereafter, theexecution proceedings in EP.No.1 of 2011 shall beclosed by recording the full satisfaction. In the event ofdefault committed by the petitioner, the executing Court shall be free to proceed with theexecution in accordance with law.
4. On compliance of the conditions, as above, the trialCourt shall fix a date for hearing of the suit from thestage at which the petitioner was set ex parte andthereafter, proceed further and determine the suit inaccordance with law.Court shall fix a date for hearing of the suit from thestage at which the petitioner was set ex parte andthereafter, proceed further and determine the suit inaccordance with law.
The civil revision petition is, accordingly, allowed. As a sequel, themiscellaneous applications, if any, shall stand dismissed. There shall be no order as to costs.
December 30, 2013DSK0
_____________________
VILAS V. AFZULPURKAR, J