Allowed

Pentapati Venkataswamy, v. Pulapa Radhakrishna Murthy

Telangana HC20 Aug 2010CRP/3533/2007

Case brief

AI extract

What is this about?

The High Court set aside an order for issuance of a fresh arrest warrant and recalled the warrant. The matter was remanded to the executing Court to examine the validity of the alleged surety bond and the petitioner's liability before proceeding with arrest under the Code of Civil Procedure.

What did the court decide?

The impugned order dated 06.07.2007 is set aside; the arrest warrant is recalled, and a counter opportunity is given to the petitioner.

Pentapati Venkataswamy, Vs Pulapa Radhakrishna… — Execution and Attachment | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD

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CIVIL REVISION PETITION No.3533 OF 2007

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Dated:20.08.2010

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Between:

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Pentapati Venkataswamy .. Petitioner

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And

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Pulapa Radhakrishna Murthy and another .. Respondents

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ORDER:

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Heard Sri K.Ram Reddy, learned counsel for the revision petitioner and Sri A.Srikanth Reddy, learned counsel for the respondents.

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The Civil Revision Petition is directed against the order of the executing Court in E.P.No.158 of 2006 in O.S.No.681 of 1996 on the file of the Principal Senior Civil Judge’s Court, Vijayawada, dated 06.07.2007, directing the issuance of a fresh warrant of arrest against the revision petitioner herein and also further directing to instruct the A.C.P. (East) Vijayawada not to permit the revision petitioner to join duty till the execution of the arrest warrant by the bailiff.

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The papers on record show that O.S.No.681 of 1996 on the file of the Principal Senior Civil Judge’s Court, Vijayawada, was a suit for recovery of Rs.78,500/- with future interest and costs from the defendant therein and a decree was passed in favour of the respondent herein on 13.07.2001. The papers also show that in Appeal Suit No.47 of 2001 filed by the defendant therein, the VII Additional District and Sessions Judge (Fast Track Court), Vijayawada, dismissed the appeal by judgment dated 14.06.2004. The present revision petitioner was obviously not a party to the suit or the appeal and the liability of the revision petitioner for payment of the said decree debt is claimed to be due to the revision petitioner standing as a surety for the original judgment debtor in I.A.No.4733 of 2001 in A.S.No.47 of 2001. The Xerox copy of the proceedings

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including the surety bond given in the said I.A.No.4733 of 2001 produced by Sri A.Srikanth Reddy, learned counsel for the respondent, are as though such a surety bond was given by the revision petitioner and was accepted by the appellate Court on 19.10.2001.

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However, in the present Execution Petition, it is seen from the material papers that as the revision petitioner herein did not file any counter and was absent, his arrest was ordered on 29.03.2007 and that as the arrest warrant was returned unserved, a fresh warrant was directed to be issued on 06.07.2007. Of course it was also endorsed that the judgment debtor escaped from the custody of the Amin.

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The revision petitioner contends herein that he was neither a party to the suit nor to the appeal, and that he was totally unconcerned with the decree debt. He also denied giving any third party affidavit or standing as a surety for discharge of the decree debt. He claims the alleged surety bond to have been fabricated to somehow recover the decree debt as he is a Government servant.

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Though the revision petitioner did not avail the opportunity given by the executing Court to file his counter to the Execution Petition and also did not submit himself to the arrest warrant issued by the executing Court, the fact remains that he was not the judgment debtor under the decree and his liability allegedly arose only because of the surety bond submitted to the appellate Court in I.A.No.4733 of 2001. As the revision petitioner denied ever submitting such a surety bond to the appellate Court it is a matter to be enquired into to determine the liability of the revision petitioner before ordering arrest and detention of the revision petitioner in execution, of course, subject to satisfaction of the mandatory provisions of Order 21, Rules 37 and 40 and Sections 51 and 55 of the Code of Civil Procedure.

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In the circumstances, it will be in the interests of justice to set

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aside the impugned order and remit the matter back to the executing Court for a decision on the plea taken by the revision petitioner. Therefore, the impugned order dated 06.07.2007 is set aside and the arrest warrant issued in E.P.No.158 of 2006 in O.S.No.681 of 1996 on the file of the Principal Senior Civil Judge’s Court, Vijayawada, shall be recalled. The revision petitioner shall appear before the executing Court and he shall be permitted to file his counter in the Execution Petition and the executing Court shall enquire into and determine the liability of the revision petitioner herein for payment of the decree debt on the basis of any surety bond given in I.A.No.4733 of 2001 in A.S.No.47 of 2001 and accepted by the appellate Court and thereafter shall proceed to determine the liability of the revision petitioner herein for any arrest and detention in accordance with the provisions of the Code of Civil Procedure for realization of the decree debt. If the revision petitioner herein does not appear before the executing Court or does not cooperate with the executing Court in coming to a decision on merits, the executing Court will be at liberty to proceed in accordance with law against him.

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Accordingly, the Civil Revision Petition is ordered without costs.

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___________________ G. BHAVANI PRASAD, J

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20.08.2010

Pentapati Venkataswamy, v. Pulapa Radhakrishna Murthy

Case brief

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Pentapati Venkataswamy, v. Pulapa Radhakrishna Murthy

Case brief

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