Remanded

Gadi Venkata Subba Reddy, v. Mudam Sattar Saheb, (Died).

Telangana HC20 Dec 2011CRP/6630/2006

Case brief

AI extract

What is this about?

Revision against execution court noting petition untenable due to irregularities and non-joinder of female heirs. Court held ex parte decree executable. Petition dismissed on non-jinder grounds; objections regarding property description rejected. Petition remanded for better schedule particulars.

What did the court decide?

Execution court objections set aside; petition remanded for better particulars of schedule property if considered insufficient.

Gadi Venkata Subba Reddy, Vs Mudam Sattar Saheb… — Execution and Attachment | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE K.G. SHANKAR

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C.R.P.No.6630 of 2006

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Date: 20.12.2011

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Between: Gadi Venkata Subba Reddy … Petitioner/ Decree holder AND

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Mudam Sattar Saheb and 7 others … Respondents/ Judgment

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debtors

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THE HON’BLE SRI JUSTICE K.G. SHANKAR

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C.R.P.No.6630 of 2006

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ORDER:

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The revision is laid questioning the orders in E.P.No.298 of 1999 on the file of the Senior Civil Judge, Rajampet, YSR District. As many as eight persons were arrayed as judgment debtors by the decree holder. The execution court held that the execution petition was not maintainable on the ground that necessary parties were not arrayed as defendants in the suit and also on the ground that there were irregularities or illegalities regarding the description of the E.P. schedule property. The decree holder consequently preferred the present revision. The judgment debtors opposed the petition.

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2. One Mudam Peeran Sahib borrowed 1,50,000/- on 30.11.1995 and 30,000/- on 01.12.1996 from the plaintiff. He did not discharge the debts. He breathed his last. The plaintiff, consequently, filed the suit against the sons of the executant of the pro-notes. The defendants 1 to 3 remained ex parte in the suit. The suit, consequently, was decreed ex parte for a sum of ` 2,40,950/-. Thereafter, the plaintiff laid the execution petition for the satisfaction of a sum of Rs.2,62,041/including interest and costs.

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The execution petition was laid under Order 21 Rules 54, 64 and 66 of the Civil Procedure Code (CPC, for short) seeking for attachment and for sale of the E.P. schedule property. The judgment debtor No.1 died during the pendency of the execution petition. His wife, sons and daughters were brought on record as judgment debtors 4 to 8 and as legal representatives of judgment debtor No.1. After judgment debtors 4 to 8 were brought on record, they remained ex parte. Judgment debtor No.1, in fact, filed counter in the execution petition while he was alive.

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3. It was published in the newspapers on 03.08.2004 that the property would be auctioned. The publication was issued after the Amin inspected the premises and valued the same.

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4. Before the publication, on 12.07.2004 itself, a

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petition in I.A.No.347 of 2004 was filed in O.S.No.38 of 1998 to condone the delay of more than 1000 days in filing the petition under Order IX Rule 13 CPC. Considering that the delay was not satisfactorily explained, the learned trial Judge dismissed I.A.No.347 of 2004. The orders in I.A.No.347 of 2004 became final, as no revision was preferred therefrom. Thus, the decree in O.S.No.38 of 1998 became final and enforceable.

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5. In the execution petition, the judgment debtors 1 to 3 did not contend that the daughters of Mudam Peeran Sahib ought to have been brought on record in the suit and that failure to bring them should non-suit the plaintiff. The question of raising such a plea in the suit did not arise, as the defendants remained ex parte in the suit. When the case came up for consideration before the execution court, the question was posed as to whether the decree is sustainable, where the decree was obtained against the male legal heirs of Mudam Peeran Sahib only excluding the female heirs. The execution court considered case law and held that the decree holder ought to have brought all the legal heirs of the executant of the pro-notes as defendants and that the very decree, therefore, was not enforceable on account of non-joinder of necessary parties.

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6. Sri Gadi Ramachandra Reddy, learned counsel

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for the decree holder at the out set contended that the execution court cannot go behind the decree and that once a decree is passed, the execution court cannot consider the validity of the decree, except on the ground of fraud. The learned counsel for the decree holder also contended that the decree at best is not executable against those legal heirs of Mudam Peeran Sahib who are not parties to the suit and against the share of the property of such heirs and that the execution against the judgment debtors cannot be stopped. He placed reliance upon Mir Ibrahim Ali v. Inayath Ali^[1] . In that case, the question came up for consideration as to the executability of an ex parte decree. The defendant-judgment debtor was unsuccessful in his attempts to get the ex parte decree set aside. The ex parte decree became final. This court held that the ex parte decree is as much executable as a decree passed on contest, except when it is a case where the court, which passed the decree, inherently lacked jurisdiction to pass such a decree.

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He submitted that there is no dispute that the trial court was entitled to entertain the lis and that the decree passed by the trial court, consequently, was sustainable. In

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Pothuri Thulasidas v. Potru Ngeswara Ra o^[2] relied upon by the learned counsel for the decree holder, it was observed that the judgment debtor could not plead any fact contrary to the decree in the execution petition.

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On the strength of these two decisions, it is contended by the learned counsel for the decree holder that the decree is indeed executable against the judgment debtors.

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7. It may be noticed that judgment debtors 4 to 8 are the legal heirs of judgment No.1. They appear to claim that Mudam Peeram Sahib has daughters and that they also ought to have been impleaded as parties to the suit. I am afraid that such a plea could be raised by those daughters or by judgment debtor No.1 at the time of the execution petition. The daughters of Mudam Peeran Sahib are not on record. The judgment debtor No.1 did not raise such plea in his counter. It is, therefore, not open for the judgment debtors 4 to 8 to raise such a plea as the legal representatives of the judgment debtor No.1. The claim of the judgment debtors that the decree is not executable as the property is joint family property over which the daughters of Mudam Peeran Sahib also have a claim cannot be accepted for two reasons. First, the executant of the pro-notes is a Mohammad for whom the concept of joint family is unknown. Secondly, the sons of the executant did not take such a plea in the suit or in the execution petition. I, therefore, am not able to agree with the finding of the execution court that the decree is not executable against judgment debtors 2 to 8. The decree, indeed, is executable against the judgment debtors 2 to 8.

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8. I may make it clear that if the daughters of the

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executant were either sharers or residuaries to the properties of executant, the decree holder may not be able to proceed against the undivided share of such daughters. The decree holder, however, is at liberty to seek execution against the undivided interest of the judgment debtors 1 to 3 in the E.P. schedule property. The objection raised by the execution court in respect of point No.1, consequently, is not sustainable.

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9. The execution court also held that there are irregularities regarding the mentioning of the boundaries and other descriptive particulars of the schedule property. The learned counsel for the decree holder indeed drew my attention to the fact that the execution petition indeed contained boundaries. However, it is the view of the execution court that the descriptive particulars, as given in the E.P., are not correct or are not sufficient. I consider that the execution petition cannot be dismissed on the ground that the details furnished in the E.P. schedule are not correct and are vague. In such an event, the decree holder should be called upon to furnish better particulars of the E.P. schedule property. Further, there is no embargo for the execution court to order for the sale of the interest of the judgment debtors in the E.P. schedule property. In Sai Enterprises v. Bhimreddy Laxmaia h^[3] relied upon by the learned counsel for the petitioner/decree holder, it was observed that the undivided interest of the

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judgment debtors in the E.P. schedule property certainly can be proceeded against in the execution of a money decree.

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10. The primary contention of Sri Ch. Janardhan Reddy, learned counsel for the judgment debtors is that all heirs of late Mudam Peeran Sahib ought to have been brought on record in the execution petition. Where the decree holder chose to file the suit against the male issue of the executant only, the decree holder cannot be permitted to bring all the heirs of the deceased executant of the pro-notes on record in the execution petition. The execution petition, therefore, was properly laid by the decree holder. The execution petition is sustainable, except for the fact that better and detailed particulars of the schedule property are needed. Accordingly, the objection raised by the execution court under point No.1 is set aside. It is found that the execution petition is maintainable against the judgment debtors. The execution petition is remitted to the execution court with a direction that the execution court may call for better particulars of the E.P. schedule property over which the execution is sought, if the execution court considers that the particulars furnished by the judgment debtors are not sufficient.

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11. The Civil Revision Petition is disposed of accordingly. The execution court may dispose of the

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execution petition expeditiously and preferably within a period of three months from the date of receipt of a copy of this order.

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_________________ K.G. SHANKAR, J

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Date: 20.12.2011 Note: Issue CC in 10 days (B/o.) Isn

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[1] 2001 (4) ALT 534 [2] 2004 (6) ALD 376 [3] (2007) 13 SCC 576

Gadi Venkata Subba Reddy, v. Mudam Sattar Saheb, (Died).

Case brief

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Gadi Venkata Subba Reddy, v. Mudam Sattar Saheb, (Died).

Case brief

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What did the court decide?

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