Dhavala Someswara Rao v. The Ivrcl.
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No.2508 of 2016 ORDER:
This revision petition is filed under section 115 of Code of Civil Procedure to set aside the order dated 25.01.2016 in E.P.No.06 of 2014 in O.S.No.09 of 2005 passed by the Principal District Judge, Srikakulam, whereby the attachment was raised over the amount.
2. The petitioner/plaintiff filed suit for recovery of amount based on the promissory note for recovery of Rs.11,57,326/-. But the suit was decreed for a sum of Rs.1,10,723/- with interest @ 12% p.a., from the date of suit till the date of decree and with subsequent interest @ 6% p.a., from the date of decree till the date of realization with proportionate costs of Rs.5,060/-against the respondents 1 to 4/ defendants 1 to 4 who are the Judgment debtors. The attachment before judgment under Order XXXVIII Rule 5 of C.P.C., was affected during pendency of the suit and it was made absolute for Rs.11,57,326/- attaching the amount in the custody of respondents 5 and 6/Defendants 5 and 6 by order dated 06.04.2005.
3. The E.P., was filed for issuing of Garnishee order for recovery of the decreetal amount of Rs.1,10,723/- together with interest and costs by attaching the amount lying with defendants 5 and 6.
4. The 2nd respondent filed counter contending that the decree holder/plaintiff preferred appeal in A.S.No.719 of 2011 before this Court and the same is pending. Suppressing the said fact, the present execution petition was filed. Hence, the petitioner is not entitled to recover any amount.
5. During the course of enquiry, the petitioner/Decree holder examined himself as P.W.1 and none were examined on behalf of the respondents/Judgment debtors.
6. Upon hearing argument of both counsel, the Executing Court i.e., the Principal District Judge, Srikakulam directed 6th respondent to deposit decreetal amount together with costs and raised attachment which was already affected in a petition filed under Order XXXVIII Rule 5 of C.P.C.
7. The Executing Court after examining the issue before it, passed the order under challenge and it is questioned on the ground that the executing Court is not competent to raise attachment as it cannot go beyond the decree.
8. During the course of arguments, Sri V.Sudhakar Reddy, counsel for the petitioner contended that the duty of the executing Court is to execute the decree and no order need be passed raising attachment over the amount lying with defendants 5 and 6 in the suit, though the suit was decreed partly and the appeal is pending for the dis-allowed part of the suit amount. Hence, the order under challenge is illegal and prayed to set aside the same.
9. Learned counsel for the respondents Sri M.Jagadeesh Kumar contended that when the decree is satisfied, the Court has no option except to raise the attachment and therefore, the order under challenge is free from any legal infirmities and prayed to confirm the same and to dismiss the revision.
10. The power of this Court under Section 115 of C.P.C., is limited and this Court can interfere with the order passed by the Courts, only, when the subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity.
11. The contention of the learned counsel for the petitioner is that the executing Court exercised jurisdiction not vested in it by law which falls under Section 115 (1) (a) of C.P.C. Therefore, it is liable to be set aside. Learned counsel though contended that attachment can be raised only by following procedure under Rule 9 of Order XXXVIII CPC the same cannot be accepted since the order to be passed is only under Order XXI Rule 55 of C.P.C., raising attachment as the suit is not pending before the trial Court but E.P., is pending before the execution Court. 12.
Admittedly, the suit was filed for recovery of Rs.11,57,326/- but decreed only for Rs.1,10,723/- together with interest and proportionate costs, interest pendentelite and subsequent interest @ 12% and 6% p.a., respectively. But no order was passed either for continuation of attachment before judgment which was already affected or to set aside the attachment to the extent of dis-allowed portion of the suit claim while continuing the attachment for recovery of decreetal amount of Rs.1,10,723/- with interest and costs and the trial Court is silent on this issue.
13. According to Order XXXVIII Rule 9 of C.P.C., the attachment can be set aside or varied and deals with removal of attachment when security furnished or suit dismissed. Accordingly, where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes security required together with security for the cost of attachment or when the suit is dismissed.
14. In the present case, the trial Court did not pass any specific order raising attachment over the amount lying with defendants 5 and 6 to the extent of dis-allowed portion of the suit claim, while, continuing attachment to the extent of decreetal amount. But the specific contention of the petitioner is that the executing Court cannot go beyond the decree and raise attachment. The order under Order XXXVIII Rules 5 and 9 can be passed by the original Court but not by the Executing Court. However, under Order XXI Rule 55 deals with removal of attachment after satisfaction of the decree in an execution petition.
According to it, where the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or satisfaction of the decree is otherwise made through the Court or certified to the Court, or the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.
15. Thus, it is clear from Rule 55 of Order XXI of C.P.C., when the satisfaction of decree is recorded, the attachment shall be deemed to have withdrawn. In the present case, the suit was decreed for recovery of Rs.1,10,723/- together with subsequent interest and proportionate costs. The decreetal amount was directed to be deposited by the 5th respondent/Judgment debtor after the decreetal amount is realized and full satisfaction is recorded, the attachment before judgment that affected before the trial Court on 06.04.2005 which continued till the date of realization, shall be deemed to be withdrawn. Here, instead of waiting till recording of full satisfaction by the Court, after receiving the decreetal amount together with costs and interest from the 5th defendant, the executing Court raised attachment for the remaining amount lying with the 5th & 6th defendants/Judgment Debtors. Therefore, raising attachment is premature since full satisfaction of the decree was not recorded by the date of passing of order.
16. As Rule 55 of Order XXI of C.P.C., contemplates deemed raising of attachment, no order need be passed by the executing Court under Rule 55 raising attachment either on movable or immovable property. The executing Court passed the order raising attachment before recording full
satisfaction is contrary to law. Hence, the same is set aside while holding that after recording full satisfaction of the decree, attachment over the property is deemed to have been withdrawn in view of Order XXI Rule 55 of C.P.C.
17. Accordingly, I hold that the order passed by the executing Court is premature and the same is hereby set aside holding that on recording of full satisfaction, the attachment of the amount lying with the respondents 5 and 6 is deemed to have withdrawn. In the result, the Civil Revision Petition is allowed setting aside the order dated 25.01.2016 in E.P.No.06 of 2014 in O.S.No.09 of 2005 passed by the Principal District Judge, Srikakulam. No costs.
Miscellaneous petitions, if any, pending in this civil revision petition shall stand closed. ___________________________________ M. SATYANARAYANA MURTHY, J 15th July, 2016.
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