Held that the Executing Court erred in closing the execution petition due to delays and failure to produce attached properties by sureties; the petition is restored to file for further proceedings.
Impugned order set aside; execution petition restored to file for proceeding in accordance with law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE R.KANTHA RAO
C.R.P.No.530 of 2012
ORDER:
I have heard Sri M.Adinarayana Raju, learned counsel appearing for the petitioners and Smt. Chinthalapudi Laxmi Kumari, learned Standing Counsel for the Food Corporation of India appearing for the second respondent. The revision petitioners are the decree holders and respondent Nos.1 and 2 are the judgment debtors and the other respondents are the sureties. The petitioners/decree holders filed the Execution Petition to realize the awarded amounts in the land acquisition proceedings, whereunder their lands were acquired. They got attached the movable properties belonging to the respondents/judgment debtors in the Execution Petition.
The Bailiff of the Court in the presence of the petitioners/decree holders and their men attached the movable properties of the sureties after obtaining security bonds from the sureties for the safe custody of the properties. The movable properties attached subsequently were brought to sale. The Executing Court ordered notices to the sureties for production of the attached movable properties. The sureties
appeared through a counsel, but failed to produce the attached movable properties. Under the surety bonds executed by them earlier, the sureties undertook to produce the movable properties before the Court as and when directed, failing which they agreed to pay the face value mentioned in the bonds to the petitioners/decree holders. As the sureties failed to produce the movable properties before the Court, the petitioners/decree holders filed petition under Sections 145 and 146 of the Code of Civil Procedure against them for the face value of the bonds executed by them with subsequent interest thereon enabling them (petitioners) to realize the said amounts towards satisfaction of the decree amounts. The petitioners/decree holders, however, failed to proceed against the sureties to realize the said amounts.
The learned Executing Court considering the fact that the Execution Petition was filed in the year 2001 and that attached movable properties were not made available for sale before the Executing Court and also on the ground that the petitioners/decree holders have not been evincing any interest to prosecute the decree, closed the execution petition by the impugned order, stating that the petitioners/decree holders can proceed against the sureties to recover the bond amounts as
there was an order by the Executing Court enabling the petitioners/decree holders to recover the said amounts from the sureties.
Sri M.Adinarayana Raju, learned counsel for the petitioners/decree holders, would contend that the amounts covered by the bonds executed by the sureties are not sufficient to satisfy the decree amounts and some more amounts have to be recovered and therefore, the Executing Court committed a serious error in closing the execution petition on the ground that the petitioners/decree holders could not get the attached movable properties produced before the Executing Court.
On the other hand, Smt Chintalapudi Lakshmi Kumari, learned Standing Counsel appearing for the second respondent, would submit that the Executing Court rightly held that the petitioners/decree holders can proceed against the sureties and did not commit any error in closing the execution petition on failure by the petitioners/decree holders to prosecute execution petition and contends that the impugned order passed by the Executing Court needs no interference.
As rightly contended by the learned counsel for the petitioners/decree holders, it is the duty of the Executing Court to get the attached movable properties before the Court and on the ground that the sureties
failed to produce the movable properties, the Executing Court is not supposed to close the E.P. Further, apart from proceeding against the sureties in respect of the bonds executed by them by taking the attached movable properties into safe custody, the petitioners/decree holders can avail other modes for realization of the E.P. amounts. The learned counsel for the petitioners/decree holders submits that after filing of the E.P, the petitioners/decree holders were subjected to needless litigation and ultimately, the matter went up to the Supreme Court and therefore, it is not correct on the part of the Executing Court to say that the petitioners/decree holders did not evince any interest in prosecuting the execution petition.
In any event, in the aforesaid circumstances, this Court is of the considered opinion that since huge amounts are to be recovered under execution petition, the learned Executing Court ought not to have closed the execution petition on the mere ground that they have been pending since 2001.
The impugned order passed by the Executing Court, is therefore, set aside and the execution petition is restored to file. The Executing Court is directed to proceed with the execution petition in accordance with law.
Hence, the Civil Revision Petition is allowed. There shall be no order as to costs.
The miscellaneous petitions, pending if any, shall
stand closed.
_________________ R.KANTHA RAO, J 12th December, 2014 rkk
3 issues framed by the court
Whether the Executing Court erred in closing the execution petition solely on the ground of protracted litigation and failure to produce attached properties.
Whether the decree holders were justified in pursuing alternative remedies against sureties to recover the bond amounts.
Whether the execution petition was liable to be restored to file for further proceedings in light of substantial recovery amounts involved.
1 provisions across 1 enactments
Decree Holders
Judgment Debtors
Sureties
Food Corporation of India
R. KANTHA RAO
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
