Andhra Pradesh High Court - Amravati
Paluri Mohana Rao vs Chitturi Rama Lakshmi on 22 November, 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.898 of 2022
Paluri Mohana Rao, S/o Late Apparao, aged about 62, Hindu,
Cultivation, R/o D.No.10-30/2, Bhayagaylakshmi Peta, 19th
ward, Tadepalligudem - 534 102, West Godavari District.
... Petitioner
Versus
Chitturi Rama Lakshmi, W/o Satayanarayna, aged about 51
years, Hindu, housewife, R/o Chebrolu (v) - 534411, West
Godavari District and another.
... Respondents
Counsel for the petitioner : Sri Pappu Srinivasa Rao
Counsel for respondents : ---
ORDER:
Claimant filed the present civil revision petition under Article 227 of the Constitution of India aggrieved by the order, dated 15.03.2022 passed in E.A.No.121 of 2021 in E.A.No.97 of 2017 in E.A.No.46 of 2019 in E.P.No.4 of 2014 in O.S.No.303 of 2012 on the file of learned Senior Civil Judge, Tadepalligudem, in imposing onerous condition of depositing 50% of the decreetal amount.
2. Respondent No.1/decree holder filed O.S.No.303 of 2012 against respondent No.2 for recovery of amount based on a promissory note. The suit was decreed, and pursuant to passing of the decree, the decree holder filed E.P.No.4 of 2014. 2 E.A.No.46 of 2019 is filed for delivery of possession of the suit schedule property.
3. At that juncture, E.A.No.97 of 2019 is filed under Order XXI Rule 99 and Section 151 of CPC and said E.A. is posted to 30.11.2021 for filing counter. Later the petitioner changed his Advocate. On 30.11.2021 the petitioner and his new counsel came to know that matter was called on 09.11.2021 and the claim petition i.e. E.A.No.97 of 2019 was dismissed on said date for non-appearance of the petitioner. Immediately on 06.12.2021, petitioner filed application to set aside the dismissal order, dated 09.11.2021.
4. Decree holder reported no counter.
5. Court below by order, dated 15.03.2022 allowed the application on condition that petitioner shall produce all the evidence on 04.04.2022 and on further condition that petitioner shall deposit 50% of the decreetal amount. Aggrieved by the condition of deposit of 50% of the decreetal amount, the above revision is filed.
6. Court ordered notice on 04.05.2022 and also permitted learned counsel for the petitioner to take out personal notice on the respondents. The notice sent to respondent No.2 was served and the notice sent to respondent No.1 returned 3 addressee left. Hence, notices are served on the respondents. None appeared for the respondents.
7. Heard learned counsel for the petitioner.
8. Learned counsel for the petitioner would contend that the condition of Executing Court directing the petitioner to deposit 50% of decreetal amount is onerous. He would further contend that the decree holder reported no counter. He would also contend that petitioner is under the impression that E.A. is coming for counter and hence, he did not appear before the Court on 09.11.2021. In fact he is ready and willing to cooperate for disposal of the E.A.
9. The point to be considered is whether imposing condition to deposit 50% of the decree amount is onerous in the facts of the case? If so, the order to that extent is liable to be set aside?
10. A perusal of the proceedings would indicate that petitioner, who is third party filed claim petition under Order XXI Rule 99 of CPC. The affidavit filed in support of the petition would further disclose that on 30.11.2021, petitioner and his Advocate were present and they came to know that their case was called on 09.11.2021 and as there was no representation the petition was dismissed for non-appearance of the petitioner. 4
11. As per the order of Court below the claim petition was posted for enquiry for the first time on 02.03.2020. Thereafter it was adjourned from time to time in view of the circular issued by the High Court due to COVID 19 situation. Claim Petition was posted for enquiry on 29.01.2020 and later to 09.11.2021. Since the petitioner did not turn up, E.A. was dismissed on 09.11.2021.
12. Claim Petitioner on coming to know about dismissal order, filed a petition on 06.12.2021 to set aside the same. Executing Court having been satisfied with the reason allowed the E.A., however by imposing certain conditions. One of the conditions among the other conditions is deposit of 50% of decreetal amount.
13. In Vijay Kumar Madan & Ors. Vs. R.N. Gupta Technical Education Society & Ors.1, the Hon'ble Apex Court held as under:
"7. Power in the court to impose costs and to put the defendant-applicant on terms is spelled out from the expression "upon such terms as the court directs as to costs or otherwise".
It is settled with the decision of this Court in Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] that on an adjourned hearing, in spite of the court having proceeded ex parte earlier the defendant is entitled to appear and participate in the 1 2002 (5) SCC 30 5 subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be reflected back and reopen the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearings into bi-parte. While exercising power of putting the defendant on terms under Rule 7 the court cannot pass an order which would have the effect of placing the defendant in a situation more worse off than what he would have been in if he had not applied under Rule 7. So also the conditions for taking benefit of the order should not be such as would have the effect of decreeing the suit itself. Similarly, the court may not in the garb of exercising power of placing upon terms make an order which probably the court may not have made in the suit itself. As pointed out in the case of Arjun Singh [AIR 1964 SC 993] the purpose of Rule 7 in its essence is to ensure the orderly conduct of the proceedings by penalizing improper dilatoriness calculated merely to prolong the litigation."
14. In view of the expression of the Hon'ble Apex Court, the Court below having been allowed the E.A. by imposing such conditions required for expeditious disposal ought not to have imposed onerous condition of deposit of 50% of the decretal amount. In the facts and circumstances of the case, since the Court below exercised the jurisdiction and allowed the E.A., the condition imposed by the trial Court regarding deposit of 50% of the decreetal amount alone is set aside. The other conditions of 6 court below remain good. The petitioner shall produce all the witnesses at one time as directed by Executing Court.
15. Accordingly, this civil revision petition is disposed of setting aside the condition of depositing 50% of the decreetal amount imposed in order, dated 15.03.2022 passed in E.A.No.121 of 2021 in E.A.No.97 of 2017 in E.A.No.46 of 2019 in E.P.No.4 of 2014 in O.S.No.303 of 2012 on the file of learned Senior Civil Judge, Tadepalligudem.
Petitioner shall produce all the evidences by the next date of hearing and he shall cooperate with the Executing Court to dispose of claim petition. In case, petitioner fails to comply with the orders of the Executing Court in producing all the evidences, it is open to the Executing Court to pass appropriate orders.
The executing court shall depose of E.A. as expeditiously as possible from the date of receipt of a copy of this order.
As a sequel, all the pending miscellaneous applications shall stand closed.
__________________________ SUBBA REDDY SATTI, J Date : 22.11.2022 ikn 7 HON'BLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION No.898 of 2022 Date: 22.11.2022 ikn