Andhra Pradesh High Court - Amravati
K.Ranga Prasad Varma vs K Sitarama Murthy on 21 June, 2019
IN THE HIGH COURT OF ANDHRA PRADESH FRIDAY THE TWENTY FIRST DAY OF JUNE TWO THOUSAND AND NINETEEN PRESENT THE HONOURABLE SRI JUSTICE AV SESHA SAI CIVIL REVISION PETITION NO: 264 OF 2079 Petition under Article 227 of the Constitutian af india, filed against the Order adi EP No. Sof 2005 in OS No. 27 of 1998, dated 01.02.2019 -- on the file aoe OH enters my AOU yt the Learned Metropolitan Sessions Judge ~ cum ~ | Additional District 2 XN Jucye, Visakhapatnam Ra a Prasad Varma, S/o. Suryanarayana Raju Aged about 56 years, Occ. Business Rio. 1D y Ne, S1a-47/8, Delight, Flat No.1, C.B.M Campound, VWishakapatnarn. --PETMONER/JUDGMENT DEBTOR AND Rotikalagual Sitarama Murthy, S/o Late Narasimha Murthy, , Aged abaut 79years, Rid, D.No.4-G6-2, Lawson's Bay Colany, Vishakapainam, 2. Kotikalapuc cd Agnihotra sarma,, S/o Late Narasimha Murthy, Aged about 77 years. Dtrectar, M's Rajeswari Plastics Pvt. Lid. Phook Chowk, Raipur, M_P- 490001 randent is mol a necessary party} -RESPONDENT/DECREE HOLDERS
Counsel forthe Petiioners : M/S INDUS LAW FIRM Counsel for the Respondents: NONE APPEARED Tre Court made the following: ORDER THE HON'BLE SRI JUSTICE A.V.SESHA SA! This revision is directed against the docket order dated 01.02.2019 passed by the Court of the Metropolitan Sessions Judge-cum-1 Additional District Judge, Visakhapatnam, im E.P.No.3 of 2005 in ©.S. No.27 of 1998.
2. Briefly stated, the facts leading to Gling of the present revision, are as follows, 2G). Petitioner herein instituted the above mentioned suit against respondents, praying for the relief of specific performance of contract of sale and permanent injunction. The trial Court dismissed the said Original Suit on merits and awarded costs to the respondents/defendants. Por realixation of the said costs awarded by the trial Court, 1* respondent/ ist defendant filed E.P. No.3 of 2005. As against dismissal af the suit by the trial Court, to the extent of awarding costs, the petitioner preferred Appeal Sutt vide ASSR No.6444 of 2005, before this Court, and along with the said Appeal Suit, he also filed an application, secking condonation of delay in filing the said appeal. This Court, vide order dated 16.06.2005 in A.S.M.P. No.1097 of 2005, granted interim stay of all Farther proceedings in 16.P. No.3 ef 2005 im O.S. No.27 of 1998 on the fle of the I Additional District Judge, Visakhapatnam. The satl appeal, according to the learned counsel for the petitioner, is pending consideration before this Court, and the stay granted, as mentioned Supra, iS stil] subsisting, 2 {ii}. While the things | being sa, a Memo came to be filed before the fxeeuting Court on behalf of Js respondent, and 1¢ learned Jude passed the following order, "This memo is clos ecl in view of the judgment of the Supreme Court and the learned counsel for the respondent/GDR and the JDR is aot present, by accepting the memo. 'The ADR is called abse ni, counter is NOL filed. he Slay stood vacated by the judgment of the Supreme Court in Asian Resurfaci ng of road agency Law V/s CR in Cri Appual No. 1375, 4 IOYO/13, dt.2a3- S918, sinee the Stay in this case was passed on 16-8. 2003 in A.S.M.P. No. Ll0o7 (OS by the High Court. fence night to fle counter js for fated. To secure the presence OF DR to Proceed with means enquiry the learned counsel for DUR seeks time tn take steps, Call on 1-22-19."
Subsequently, the lear ned Judge passed the following docket order on 01.02 42019.
"Learned coursel for BHR Mled petition to iSSUd arrest Warrant U/so 27 é {2) CPC for comncdone Mean enquey, fence issuc A trest Warrant to conduct Mees Cnuyuiry against the Jppe whe is not regarding to the natice on Payment of process by DEHR is 3 days returnable by 83-19 4 In the above back ground, challenging the validity and legal sustainabj lity of the said docket order, the present Civil Kewision Petition carne to be fled before this Court.3
3. In the present revision, this Court, in LA, No.2 of 2019, passed the following order.
"This petition is filed to suspend the arder dated O1,02.2019 passed in B.P.No.3 of 2005 In O.S.Na.27 of 1998 an the Me of Metropolitan Sessions Judge-curm-l Additional District Judge, Vishakapalnen, Heard the learncd counsel for the petitioner.
Learned counsel painis that initially an order was passed in A.S.M.P.No. 1087 of 2005 granting an interim stay pen ding further orders. On 23.01.2019 Metropolitan Sessions Judge cur] Additional Tistrict Judge, Vishskapatnam held thet the stay granted is automaticaly yacated in view of the Judgment of the Horvble Supreme Court of India in Asian Resurfacing of Road Agency Private Limited Vs. Central Bureau of Investigation (2018 SCC OnLine SC 310) It is the contention of the learned counsel that Asian Resurfacing's case applics anly tn the cases pending trial and that the six rnonths dead line fixed by the Hon'ble Supreme Court clearly talks of trial being stayed in the trial Court. It ig his cantention that the order that is passed by this Courtin A.S.M.P.No. 10987 of 2005 exercising its statutory power as an appellate Court an ad that the provisions af erder 43 ete., would not apply and are not relevant in this situation. [It is his further contention that only if the trial is stayed, the Judgment af the Hon'ble Supreme Court of India or the subsequent memo issued by the High Court would apply.
This Court is at the opinion that the learned cou nsel has made out a prima-facie case for interference al this stage.
in this view of the matter, there shall be suspension of the order dated 01.02.2010 passed in E.P.No.3 of 2005 in O.5.N a2 7 af 1998 on the fe of Metropolitan Sessions Judge-cum-l Additional District Judge, Vishakapatnam for a period of eight weeks from today.
In this period of eight wecks, learned cou nsel for the petitioner is permitted tp take owt personal notice to the respondents by RPAD and Sie proaft of service in the Registry, positively by $S.04. 2019, Liston [S.04.2019."
fa h On the directions of this Court, the learned counsel for the petitioner ca used notice to [st respondent by registered post with ackn owledgement due. 'Track record of Department of Posts, whieh shows that 1st respondent did not clan i oon 29.02.2019, is filed before this Court by the learned counsel by way of a Memo dated 2? 02.2019. There is No representation on behalf of Ts respondent, a Heard Sri V.RLN Prashanth, learned counsel for petitioner and perused the material available before the Court.
6, The principal contention advanced by the learned counsel for the petitioner in this re vision is that the judgment of the Hon'ble Apex Court in Asian Resurfacing of Road Agency Private Limited vu. Central Bureal of Investigation! is net applicable to the case on hand and the learned J iudge erred in apphin & the principle laid down in the said judgment. [t is the further contention of the learned coun sel, in claboration, that the question of expiry of Stay after six months would arise, as per the abovesaid judgment ef the Hon'ble Apex Court, in. the cases where there is stay of trial, but not otherwise. The learned counsel has also placed on record 2 jfudements of the Karnataka High Court ic. in RIP LA.
No. 1344 af 20) 2, dated 15.03.2019 and W.P.Nos. 100648.
OES SOO Gating SC ada 1006849 of 2039, dated 10.01.2019, in suppert of his contention, i. In the above background, now, the issues that emerge for consideration. of this Court in the present Civil Revision Petition are ~ tj Whether the learned 1 Additional District Judge, Visakhapatnam is justified in appying the judement of the Hon'ble Apex Court in Asian Resurfacing of Road Agency Private Limitec's case (1 supra), to the case on hand ? and 2} Whether the court below is correct im issuing arrest warrant under Order XX Rule 37 of the Code of Civil Procedure, 1908 ?
&. In order to appreciate the contentions of the learned counsel for the petitioner, it would be appropriate to refer to the judgments cited by the learned counsel fer the petitioner. In Asian Resurfacing of Road Agency Private Limited's case (1 supraj, the Hon'bic Apex Court, while dealing with the issue under the Prevention of Corruption Act, 1988, at paragraph Nos.37 and 38, ruled as under:
"In view of above, situation of proceedings remaining pending for long on account of stay needs ta be remedied. Remedy is required nat aniy for corruption cases but for all civil and criminal cases where an account of stay, eivil and criminal procecdings are held up. At times, proceedings are adjourn ed sine dig on account of stay. feven after stay is vacated, intimation is not received and proceedings are rot taken up. In an altterapt to rem edy this, situation, we co neider it appropriate to direct that im all pending cases where Slay against proceed ings of a ei) or criminal trial IS Opera fins, the same will came fo eur enecl or: expiry of six mar Ihs tron today unless in an exceptional case Dy a spea King order such Stay is extended. In cases where stay is granted in future, the Samo will end on expiry of six months from the date of such order unless similar CXLeLSION 18 granted by a spcaking order. The speaking order must show thet the CASe Was of such exceptional Aelure Chat continu ing the Slay Was more important than heaving the trial finalised.
The trial Court where order af stay ef civil or criminal proceedings is produ ced, may fix a date not beyond six tanths of the order of Slay sa that an capiry of period of SEAY. proceedings can Commence unless order of CxLENSION af stay is produced.
Thus, we declare the law to be that urder framing as charge is not purely an intertoey tory order nor a final < order, Jurisdiction af the Ingh Court is not barred irrespective of the la hel of a petition, be it under S ASS or 482 CrP... or Arlicte Hlowever, the said Jurisdiction fs te be exercised consistent with the icwislative poley to ensure expeditious disposal of a tvlat without the same heing in AMY Mhavner hampered. Thus considered, the challenge to anorder of charge shoulct be ericriained in a rarest of PATC CASE Only to correet a patent error of jurisdiction and not to re-appreciate the matter. iven where such challenge {gs entertained and Slay is granted, the matter Mast be decided on day-to-day basia so that stay does Het operate for an und uly long period, Though mo mandatory inne lint may be fixed, the decision may rot caceed twathree months normally. Uf it remains pendirig laneer, duration af stay should not exececed SIX months, unless extension is grantod by a specific Sptaking order, as already indicated. Ma ndate of speedy Justice applies to Cases as well as ather eases where at triad stage proceedings are stayed by the higher court j.c. the High Court er a court below the tigh Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial ig operating, stay will automatically lapse after six months from today uniess cxterided by a speaking order en above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the praceedings without waiting for any other intimation unless express order extending stay is produced."
Q. A. reading of the abovernentioned paragraphs of the judgment of the Hon'ble Apex Court dernonstrates, in vivid and clear terms, that contingency of expiry of stay after six months would arise only in cases where there is stay of trial. In the instant case, such contingency docs not exist. Admittedly, when the petitioner herein approached this Court by way of filing appeal in ASSR No.6444 of 2005, this Court, vide order dated 16.06.2005 in A.\S.M.P. No. 1097 of 20005, granted interim stay of all further proceedings in E.P. No.3 of 2005 in O.S. No.Q7 of 1998 an the file of the | Additional District Judge, Visakhapatnam. According to the learned counsel, the said stay is still operating and subsisting. When a similar issue cropped up before the Karnataka High Court in execution, the Karnataka High Court, after elaborately comsidering the issue, held in its order dated 10.01.8019 in W.P.Nos. 1L00648-100649/2019, that the executing court cannot Preceed to oxecute Judgment and decree which is stayed and categorical] y held that if any appellate court in any regular appeal or second appeal grants an interim stay of im pugned judgment and d eeree, either of the trial court or of the first appellate court, as the case may be, then, so long as the Stay of the execution of the deerce remains in force, there can be ne execution of the judgment and decree. In the said judgment, the Karnataka high Court also observed that the trial court or any other court subordinate to the High Court, cannot insist that there has to be further erder made by the High Court contin ving the stay of such orders on the expiry af Six months from the date on which stay order was passed, The said prin ciple was redierated by a Division Bench of the Karnataka H igh Court in its order dated | 23.03.2019 in RUF A. No. 1344 of S012.
1Q. Having regard ta the above reason s, this Court : . + . . . cae 4 has absahitely no scintila of hesitation nor any trecesof doubt to hold that the dacket order passed by the learned | Additional Distriet Judge, Visakhapatnam, which 1s impugned in the present revision cannot be sustained in the eve of law, Li, Accordingly, the Civil Revision Petition is allawed, setting aside the docket order dated 01.02.9019 passed by the Court of the Metropolitan Sessiang Judge-cum-| Additional District JJ udige, Visakha patnam, in Eo P.Ne.38 of be .
"e i, 2005 in O.S. No.2@7 of 1998. Tt is made clear that till the order dated 16.06.2005 in A.S.M.P. No. 1097 of 2005 in ASSR No.6444 of 2005 remains in foree, the executin g court cannot proceed further with the Execution Petition.
MisceHaneous petitions, if any, pending in the Civil Revision Petition shall stand closed in consequence.
ad/- K. TATA RAO ASSISTANT REGISTRAR HWTRUE COPY? fe.
SECTION OFFICER One Fair Copy to Hon'ble Sri Justice A.\V.Sesha Sai $s GO BS ea vt (for his lordship's kind perusal} The Metropolitan sessions Judge cum { Additional District Judge, Visakhapatnam (along with case recards if any} One CC to M/S Indus Law Firm Advocate [OPUC} SLR Copies The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi The Secretary, Andhra Pradesh Advocates Association, High Court Buildings, Amaravathi ALP.
The Section Officer, CRP Section, High Court of Andhra Pradesh, Amaravathi, AP Two CD Capfes yer"
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