Andhra HC (Pre-Telangana)
Sri Kokkirapati Venkata Ratham vs Sri Mellimi Samuel John (Died) And ... on 27 December, 2017
Author: B. Siva Sankara Rao
Bench: B. Siva Sankara Rao
HONBLE Dr. JUSTICE B. SIVA SANKARA RAO CIVIL REVISON PETITION Nos.5167 of 2011 and batch 27-12-2017 Sri Kokkirapati Venkata Ratham .Petitioner Sri Mellimi Samuel John (died) and others Counsel for Petitioner :Sri Mangena Sreerama Rao Counsel for Respondents: -- <GIST: >HEAD NOTE: ? CITATIONS: 1. 2004 (6) ALT 111 2. AIR 1978 AP 173 3. AIR 1964 Madras 78 4. AIR 1963 SC 1150 HONBLE Dr. JUSTICE B. SIVA SANKARA RAO CIVIL REVISON PETITION Nos.5167 of 2011 & 3982 of 2012 COMMON ORDER :
The revision petitioner in C.R.P.No.5167 of 2011 is the decree- holder of the simple money recovery suit based on pronote, dated 15.07.2004, executed by the sole 1st defendant of the suit on the file of the I Additional Junior Civil Judge, Kovvur, and the suit on contest was decreed on 02.09.2009 for an amount of Rs.77,340/- with subsequent interest from 17.07.2007 till date of decree at 12% p.a. and thereafter on the principle amount of Rs.45,000/- from 03.09.2009 at 6% p.a. The execution petition was filed against the sole judgment- debtor for recovery of the amount by attachment of the property covered by the E.P. Schedule and from the 1st judgment-debtor pending execution petition died, his legal representatives judgment- debtors 2 to 6 were added, and out of them, the 4th judgment-debtor, one of the sons of the sole judgment-debtors, wife is added as 7th judgment-debtor as transferee of the 4th judgment-debtor, universal donee, vide so-called registered settlement executed on 13.12.2005 by the sole judgment-debtor/defendant in favour of his one of the sons-4th judgment-debtor and he in turn executed in favour of his wife on 23.07.2007, it is on contest impugning the attachment of the immovable property sought for in recovery of the decree debt, the order of attachment to bring the property for sale to realize the decree debt, ended in dismissal by order of the Executing Court, dated 08.08.2011 in E.P.No.10 of 2010. Impugning the same, C.R.P.No.5167 of 2011 is filed.
2. Similarly, C.R.P.No.3982 of 2012 was filed by the decree- holder of E.P.No.85 of 2011 of decree in O.S.No.345 of 2007, dated 22.12.2010 for recovery of Rs.68,720/- with interest at 12% p.a. from date of suit till date of decree and thereafter at 6% p.a. on the principle sum of Rs.40,000/- on the estate of the deceased-1st defendant since died pending suit in the hands of his legal representatives-defendant Nos.2 to 6, that were shown as judgment-debtors and the 7th judgment-debtor/wife of the 4th judgment-debtor, was impleaded in the execution petition and in the execution petition the relief for recovery of the amount sought is by attachment of the immovable property showing the E.P. schedule to realize the said decree debt claiming that it belongs to judgment-debtor No.1 in the hands of the other judgment-debtors supra. That execution petition was also since ended in dismissal on 06.02.2012, C.R.P.No.3168 of 2012 is maintained.
3. In both the revisions notices ordered to the judgment-debtors 2 to 7 supra, and it was acknowledged, however, they did not choose to appear.
4. Heard in both the matters and perused the grounds of revisions and the impugned orders of the lower Court.
5. The transferees in question by virtue of the so-called settlement though prior to the two suits in question were subsequent to the so- called pronote debts contacted by the 1st judgment-debtor/donor in favour of one of his son-the universal donee. And the donee from the judgment-debtor being the son of the donor/judgment-debtor in turn again executed a settlement in favour of his wife-the 7th judgment- debtor/7th respondent in the two revisions. It cannot be said that the judgment-debtor has no knowledge about the contacting of the pronote debts and the amounts due from him. Once such is the case, there is no necessity of filing a separate suit if at all the decree-holder is able to show that the transfer by execution of settlement by the judgment-debtor before even filing of suit and subsequent to the contacting of the money decree amount under pronote a fraudulent transfer to adjudicate. The lower Court in such a case is supposed to enquire into and pass an appealable order by virtue of Order XXI Rule 58 clause 4 read with Section 96 C.P.C. and the Full Bench expression of this Court in Mr. Gurram Seetharam Reddy v. Gunti Yashoda and another by recording evidence rather than dismissal of the application by referring to the two expressions placed reliance, one is of this Court in Linga Reddi Srinivasulu Reddy (died) and others Vs D.Muniratnam Reddi and others , saying a universal donee, who is in possession of the properties of the judgment-debtor, is also to submit to the jurisdiction of the Executing Court to proceed against the property by the decree-holder and the other judgment of Dayanandan v. Venugopal Naidu , on similar proposition. Further, the Constitutional Bench of the Apex Court in Abdul Shukoor Saheb v. Arji Papa Rao , referring to Section 53 of the Transfer of Property Act, held that even a transferee in good faith to claim as bonafide transferee for consideration without notice of the earlier defects must establish the same for which also the burden lies on such transferee to claim exemption from proceeding against the property in question. Thereby, the impugned dismissal orders of the lower Court are unsustainable and are set aside by remanding the matter to the lower Court by restoring the two applications with a direction to conduct enquiry afresh by recording evidence and decide on own merits afresh.
6. Accordingly and in the result, both the civil revision petitions are allowed by remanding the matters to the lower Court for disposal as above indicated.
Miscellaneous petitions pending, if any, in both the revisions shall stand dismissed. No order as to costs.
____________________________ Dr. B. SIVA SANKARA RAO, J 27th December 2017.