A. Omkar , B.Sc.,LL.M.,

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE:: VINUKONDA.

Present: Sri A. Omkar, Junior Civil Judge, Vinukonda.

Friday, this the 22nd day of September, 2017.

EP.No.29/15 In OS.24/11

Between:

Kondru Subba Rao, S/o Kotaiah, aged about 60 years, Hindu, Cultivation, R/o Velpuru village and Post, Savalyapuram mandal, Guntur District. .. Petitioner/Decree holder

And

Gaddam Anjaiah, S/o Subbaiah, aged about 50 years, Hindu, Cultivation, R/o Thummalakunta Village, Kothaluru Post, Savalyapuram mandal, Guntur District.

..Respondent/Judgment debtor

This petition is coming on 19-09-2017 for final hearing before me, in the presence of Sri A. Ajay Babu, Advocate for Decree holder/plaintiff and of Sri G. Venkateswarlu, Advocate for Judgment debtor/defendant and having stood over for consideration till this day, the Court made the following: - // O R D E R //

1.This petition is filed by the D.Hr./Petitioner U/Or.21 Rule-37 & 38

C.P.C to issue a notice to the J.Dr and for issuance of warrant of arrest against the J.Dr. for the realization of the decreetal amount and for costs of the petition.

2.The brief contents in the affidavit of the D.Hr. are that he obtained a money decree against the J.Dr. On 20-02-2015 since the date of decree the J.Dr. has not made any payment towards the discharge of decreetal amount. The J.Dr is having valuable movable properties like she buffaloes and immovable properties like dry and wet lands and getting Rs.3,00,000/- per annum as annual income and the 2 J.Dr. Also having business of selling and buying she buffaloes and getting Rs.20,000/- per month as income. The J.Dr. Has got capacity and sufficient means to pay the decreetal amount and the D.Hr came to know that, the J.Dr is trying to leave the jurisdiction of this Hon’ble court to avoid E.P. claim. Hence he prays to issue a warrant of arrest against the J.Dr. for the realization of the decreetal amount.

3.The J.Dr. filed his counter and denied most of the material allegation in the affidavit of the D.Hr. He submitted that he has no means to pay the decreetal amount and he is aged about 60 years and he has no any independent income and realized assets to discharge the E.P amount and the E.P. is not maintainable for arresting him and sending him to civil prison and therefore prayed to dismiss the E.P. with costs.

4.To prove the case of the petitioner/Decree holder, himself examined as PW1 and Ex.P1 to P4 documents were marked on the

D.Hr. side. The J.Dr. examined himself as RW1 and Ex.R1 to R4 documents were marked on the J.Dr. side.

5.The Point for determination is :

“Whether the D.H.r is entitled to seek a warrant of arrest against the J.Dr. U/or 21 Rule 38 CPC for the realization of the decreetal amount?”

6.Head both sides.

7. POINT :

It is the contention of the petitioner/D.Hr as can be seen from his affidavit in chief that the Hon'ble court passed decree and judgment in his favour directing the J.Dr. to pay amount as per decree and after passing of decree he made several repeated demands to the J.Dr. to clear off decree amount but the J.Dr. did not pay the amount. To support his contention the D.Hr himself examined as PW1 and stated 3 that the J.Dr is having valuable movable properties like she buffaloes and immovable properties like dry and wet lands and getting

Rs.3,00,000/- per annum as annual income and also having business of selling and buying she buffaloes and getting Rs.20,000/- per moth as income and also having an extent of Ac.00-88 cents wet land in

S.No.147-2A/4 of Kothaluru Revenue Village, an extent of Ac.01-61 cents wet land in S.No.182-2B/1 of Kothaluru Revenue village and an extent of Ac.00-87 cents wet land in S.No.182-7-2 of Kothaluru

Revenue Village and the J.Dr. Is trying to leave the jurisdiction of this court. To support his contention he marked Ex.P1 Adangal copy for the fasli 1426 (meeseva copy) dt. 22-11-2016 and Ex.P2 Form 1-B namuna (ROR). C.C. of pattadar pass book and CC of title deed are marked as

Ex.P3 and P4 respectively during the course of cross examination of

RW1. During the course of cross examination he stated that he do not know the survey numbers as he is an illiterate which is covered under

Ex.P1 and P2and he obtained the same from Mee seva. He denied the suggestion that Ex.P1 and P2 are existing in the name of Gaddam

Hanumantharao, S/o J.Dr., but not in the name of J.Dr. nothing was elicited. PW1 further admitted that J.Dr is having properties on his own and nothing was elicited by the defence counsel to disprove his contentions.

8.RW1 stated in his chief examination that he is aged about 61 years and he is not doing any work due to old age and he has no independent income and realized assets to discharge the E.P. amount and he has no means to discharge the E.P. and the arrest E.P. filed against him is not maintainable. To support his contention he filed

Ex.R1 C.C. of Adangal for fasali 1425 from Mee Seva on 19-10-2015 in respect of Kothaluru Revenuye village S.No.182-7-2, Ex.R2 CC of

Adangal for fasali 1425 obtained from Mee Seva on 19-10-15 in respect 4 of Kothaluru Revenue Village S.No.182-2/B1, Ex.R3 CC. Of adangal and 1-B for fasali 1426 obtained from Mee seva on 08-12-16 in respect of

Kothaluru Revenue Village S.No.147-2A/4 standing in the name of

Gaddam hanumantha Rao, and Ex.R4 CC of 1-B obtained from Mee

Seva on 26-12-2016 in respect of Kothaluru Revenue Village S.No.147- 2A/4 standing in the name of Gaddam hanumantha Rao. During the course of cross examination RW1 admitted that he know the reason why D.Hr filed this petition against him and he know the contents of counter and also Ex.R1 to R4 filed by him. He further contention that one Gaddam Subbaiah is his father and one Gaddan Chenchaiah and one Gaddam Venkateswarlu are his brothers. He further admitted that himself and his father partitioned their family properties and also executed a documents and as per the said partition he got Ac.0-88 cents, Ac.2-30 cents, Ac.1-20 cents, Ac.0-64 cents, Ac.0-55 cents, Ac.0- 67 cents, Ac.1-00 cents of agricultural lands and also obtained pattadar passbook regarding those lands and photo pasted on the pattadar passbook belongs to him in Ex.P3 and also he obtained Ex.P4 titled deed from RDO office. He further admitted that he deposed as a witness in O.S.101/2008 and he filed originals of Ex.P3 and P4 on his behalf in that suit. Presently the said land in Ex.P3 and P4 is not in his possession and he did not made request to the concerned authorities to cancel Ex.P3 and P4 as he is not in possession of the said properties.

He again stated that he gave the lands to his children. He can file the documents showing proof that he has transferred the properties in

Ex.P3 and P4 to his children at about 8 years back. He further admitted that one javvaji Rangaiah filed E.P against him for attachment and sale of properties to an extent of Ac.0-64 cents. RW1 stated that the said Ac.0-64 cents land is in the name of his son

Gaddan Hanumantha Rao. He further admitted that the said 5 Hanumanthao never filed any claim petition claiming the Ac.0-64 cents as his own either in Narasaraopet or Vinukonda court. He can file the medial proof to show that he is suffering from ill health. He further admitted that he had transferred the RCC daba house in favour of his son.

9. On careful perusal of the evidence of PW1 it is clear that the

D.Hr obtained decree against the J.Dr. and the D.Hr. Admitted that J.Dr has got landed properties and she buffaloes business and immovable properties and that J.Dr. Has got sufficient means to pay the decreetal amount. To support his contention he filed Ex.P1 adangal copy dt. 22- 11-2016 and Ex.P2 1-B namuna. Ex.P1 and P2 clearly shows that Ac.0- 88 cents in S.No.147-2A/4 stands in the name of the J.Dr. But during the course of chief examination RW1 stated that he has no movable or immovable properties in his name and to support his contention he filed Ex.R1 C.C. of Adangal for fasali 1425 from Mee Seva in respect of

Kothaluru Revenuye village S.No.182-7-2, Ex.R2 CC of Adangal for fasali 1425 obtained from mee Seva in respect of Kothaluru Revenue

Village S.No.182-2/B1, Ex.R3 CC. Of adangal and 1-B for fasali 1426 obtained from Mee seva in respect of Kothaluru Revenue Village

S.No.147-2A/4 standing in the name of Gaddam hanumantha Rao, and

Ex.R4 CC of 1-B obtained from Mee Seva in respect of Kothaluru

Revenue Village S.No.147-2A/4 standing in the name of Gaddam

Hanumantha Rao. The R1 to R4 shows that the properties stands in the name of son of the J.Dr. On careful perusal of the documents it is found that Ex.P1 and P2 are obtained by PW1 on 22-11-2016 from Mee Seva and on the date of obtaining said certificates the name of the title holder is shown as J.Dr. Exs. R3 and R4 obtained by the RW1 from Mee

Seva on 08-12-16 and 26-12-16 but the said documents shows that the name of the title holder is the son of J.Dr. It clearly establishes that the 6 J.Dr. Transferred his property after obtaining Ex.P1 and P2 by the PW1.

During the course of cross examination RW1 admitted that himself and his father partitioned their family properties and also executed a documents and as per the said partition he got Ac.0-88 cents, Ac.2-30 cents, Ac.1-20 cents, Ac.0-64 cents, Ac.0-55 cents, Ac.0-67 cents, Ac.1- 00 cents of agricultural lands and also obtained pattadar passbook regarding those lands and photo pasted on the pattadar passbook belongs to him in Ex.P3 and also he obtained Ex.P4 titled deed from

RDO office. So it is clear that the J.Dr. Has got his share of properties during the family partition. RW1 further admitted that he deposed as a witness in O.S.101/2008 and he filed originals of Ex.P3 and P4 on his behalf in that suit. It clearly establishes that RW1 has got landed properties.

10.RW1 further admitted that he gave the lands to his children and he can file the documents showing proof that he has transferred the properties in Ex.P3 and P4 to his children at about 8 years back. But on perusal of Ex.P1 and P2 it clearly shows that the said land stands in the name of the J.Dr. till 22-11-2016. Hence, it is clear that on the date of obtaining Ex.P1 and P2 by PW1 the said lands stands in the name of the J.Dr. He further admitted that one javvaji Rangaiah filed E.P,.

against him for attachment and sale of properties to an extnet of Ac.0- 64 cents and the said Ac.0-64 cents land is in the name of his son

Gaddam Hanumantha rao. But the said Gaddam Hanumantharao never filed any claim petition claiming the Ac.0-64 cents as his own either in

Narasaraopet or Vinukonda court. Hence, it is clear that the said land also belongs to the J.Dr. and he wantonly evading to pay the decreetal amount to the D.hr even though he is having sufficient means.

7 To support his contention the J.Dr. relied upon a decision in Aluru

Venkata Rao Vs. Kodali Venkata Sri krishna reported in 1994 (3)

ALT 538. Wherein it is held that:

“Jdr. Must have means to pay on the date when court give such a finding and not at an earlier date. The word means can only mean realizable assets to pay decreetal amount”.

The suit was filed by the petitioner on 01-03-2011 and it was decreed on 20-02-2015. This E.P. was filed buy the petitioner on 16-03- 2015 and Ex.P1 and P2 obtained on 22-11-2016. So it is clear that on the date of decree of the suit the properties of the J.Dr. Stands in his name. The contention of the J.Dr is that the properties now not stands in his name. But Ex.P3 and P4 reveals that the properties stands in the name of J.Dr. and the said Pattadar pass book and title deed were not cancelled by the Revenue Authorities. During the course of cross examination DW1 admitted that he did not made request to the concerned authorities to cancel Ex.P3 and P4. Hence, it is clear that the

J.Dr. Has got landed properties in his name on the date of pronouncement of the order in the execution petition. Hence, the above said citation does not protect the contention of the J.Dr.

Based on the above discussion this court came to the conclusion that the J.Dr. has owned landed properties and has means to pay the decree amount and avoid to pay the same to the petitioner. Therefore the court can presume for all practical purposes that the J.Dr.

succeeded to the said landed properties and thereby getting the income on agricultural works.

11. Since the D.Hr./ PW1 could successfully place the sufficient material in respect of the financial capacity of the J.Dr. by producing evidence, it is sufficient to hold that the J.Dr. has not been paying the

E.P. amount despite his sources and affluency and therefore it is a fit 8 case to order for arrest. Hence, the petition is allowed with costs. Issue arrest warrant executable on or before 11-10-2017, on payment of process.

Typed to my dictation to the Personal Assistant directly on system, corrected and pronounced by me in open Court, this the 22nd day of September, 2017.

Junior Civil Judge, Vinukonda.

Appendix of Evidence Witnesses examined

For petitioner/ decree holder: for respondent/Judgment debtor :

PW1. K. Subba Rao RW1: G. Anjaiah

Documents marked for petitioner/ decree holder:

Ex.P1: Adangal for the fasali 1426 obtained from Mee seva dt. 22-11-16

Ex.P2: 1-B namuna obtained from mee Seva

Ex.P3: C.C. of pattadar pass book

Ex.P4: C.C. of title deed.

Documents marked for respondent / Judgment debtor: Ex.R1: C.C. of Adangal for fasali 1425 from Mee Seva on 19-10-2015 in respect of Kothaluru Revenuye village S.No.182-7-2.

Ex.R2: CC of Adangal for fasali 1425 obtained from Mee Seva on 19-10- 15 in respect of Kothaluru Revenue Village S.No.182-2/B1.

Ex.R3: CC. Of adangal and 1-B for fasali 1426 obtained from Mee seva on 08-12-16 in respect of Kothaluru Revenue Village S.No.147- 2A/4 standing in the name of Gaddam hanumantha Rao.

Ex.R4: CC of 1-B obtained from Mee Seva on 26-12-2016 in respect of Kothaluru Revenue Village S.No.147-2A/4 standing in the name of Gaddam hanumantha Rao.

Junior Civil Judge, Vinukonda.

IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF I CLASS : VINUKONDA

PRESENT:- Sri A. Omkar,

Junior Civil Judge-cum- Judl. Magistrate of I Class, Vinukonda

Tuesday, the 11thday of June, 2019.

E.P.NO.49/2016 in O.S.NO.231/2015

Between:

Gunda Anusha, D/0 Venkateswarlu, W/o Medam Ramesh, aged about 24 years, Hindu, buisness, R/o Vinukonda town, now R/o at Kurichedu (V & M), prakasam District. … Petitioner/D.Hr

And

Cheedhilla Srinivasa Rao, S/o Venkateswarlu, Hindu, business, aged about 54 years, R/o Proprietor of Vani Cut Pieces, Opp: Library Bazaar in Vinukonda town, Guntur District. … Respondent/J.Dr

This Petition is coming on 30-04-2019 for final hearing before me in the presence of Sri. K.Bhanu Teja, Advocate for the Petitioner/D.Hr and of Sri N. Ramakoteswara Rao, Advocate for the Respondent/J.Dr and having stood over till this day for consideration, this Court delivered the following:

O R D E R

1. This Execution Petition is filed by the Petitioner/Decree Holder under Order 21 Rules 37 and 38 and Section 55 of C.P.C, for the arrest of the J.Dr.

2. The brief averments of the affidavit filed in support of the

Execution petition are that the D.Hr obtained the Decree against the

J.Dr on 27-06-2016 for an amount of Rs.1,15,132/- with subsequent interest and the J.Dr has not paid the decreetal amount so far despite repeated demands and in spite of his sufficient capacity to pay the same and therefore, this Execution Petition is filed for his arrest. It is further contended that the JDR has got sufficient means to discharge his debt since he is doing cloth business and thereby he is sufficiently affluent enough to discharge the E.P. amount, but still he is avoiding and therefore, this present E.P. is filed for ordering arrest of the J.Dr.

3. Counter filed by the Respondent/J.Dr denying most of the averments of the petition and submits that he sold away his properties and discharged the debts to the borrowers about six months back of filing of the suit in the presence of elders and at that juncture the grandfather of the D.Hr Kothamasu China Kotaiah of Ravulapuram also received amount from the defendant as per ratio and pronote was also handed over to the him by the said Kotaiah and after that said Kotaiah and D.Hr and her husband created forgery promissory notes in favour of D.Hr and her husband and filed the suits and got the decrees against him and the husband of D.Hr also filed the suit and got the decree against him for wrongful gain and the suit schedule properties not belongs to the J.Dr and he is not in possession of the suit schedule properties and the D.Hr filed this E.P against him with mollified intention and to grab the properties and filed the execution to have a wrongful gain and prayed to dismiss the execution proceedings with costs.

4. During the course of enquiry, the Petitioner/D.Hr herself was examined as P.W.1 and Pws2 was also examined on her behalf and

Ex.P1 and P2 are marked on her behalf. The respondent himself examined as RW1 and got marked Ex.R1 to R5 on his behalf.

5.Heard on both sides.

6.The Point for consideration is that:

‘’whether the Petitioner/ D.Hr could prove the

sufficient means of the Respondent/J.Dr and so also, his

avoidance to pay the decreetal amount?’’

7.POINT:- It is the contention of the petitioner/D.Hr as can be seen from his affidavit in chief that the Hon'ble court passed decree and judgment in his favour directing the J.Dr. to pay amount as per decree and after passing of decree he made several repeated demands to the J.Dr. to clear off decree amount but the J.Dr. did not pay the amount and the J.Dr is trying to sell and alienate property, immediately to avoid the E.P. debt and to leave from the jurisdiction of the Hon'ble court. In her cross examination PW1 admitted that the 3rd elder brother filed E.P. against the same J.Dr. and it is pending and the 2nd elder brother also filed EP against the J.Dr. at Senior Civil Judge Court,

Narasaraopet to arrest him and same was dismissed on merits and she know the J.Dr was a cloth merchant previously. She further stated that he know the J.Dr due to incurring of heavy debts, he sold away all his properties and he was ready to give 53% to the borrowed debt to all the borrowers including her but she did not accept. He further admitted that Ex.P1 was executed by the wife of J.Dr and the photos filed by her are not disclosing the name of the proprietor. PW2 also supported the version of PW1 and during his cross examination he stated that he do not know whether the J.Dr. Was declared as insolvent by the court and sold away all his properties and settle the debts to all the creditors. On perusal of the evidence of Pws 1 and 2 it is clear that DW1 is doing business and his wife is also selling the sarees and DW1 is having capacity to pay the decree debt and he was trying to evade the same.

RW1 stated in his chief examination that he sold away his properties and discharged the debts to the borrowers about two years back and the D.Hr and her husband created forgery promissory note and filed the suit and obtained decree against him and the suit schedule properties not belongs to him and he is not having any properties in his favour and he is working as a clerk in cloth shop and also suffering from ill health and he has no means to pay the decreetal amount and his entire properties were sold away to third parties and discharged the debts. To support his contention he marked Ex.R1 to R5 on his behalf. On perusal of Ex.R3 and R4 which shows that DW1 and his wife executed sale deeds dt.04-07-2014 and 25-02-2015 respectively. During the course of cross examination he stated that himself, his wife and children are living jointly under one roof and his son is working as a clerk at one shop and up to the year 2014 he incurred debts of Rs.80,00,000/- and in the month of July, 2014 he cleared all the debts as per 53% ratio to each creditor and D.Hr. refused to received 53% ratio. RW1 stated in his chief that the D.Hr fabricated the pronote and obtained decreed again him but in his cross examination he categorically stated that D.Hr did not agree to receive 53% ratio. If the version of chief examination of

DW1 is true, then why he offered to give 53% ratio to discharge his debt. So it is clear that DW1 was debted to PW1. He further categorically deposed that himself and one Chunduri Srimanarayana jointly runned cloth business up to 2014. Further witness adds that he is working as clerk in the said shop. The counsel for the D.Hr shown copy of pamphlet disclosing the names of executive body of cloth merchants association for the year 2017 and 2018 and DW1 admitted the same. On perusal of the said pamphlet which clearly shows that

DW1 is the partner for Vani cut pieces center. The D.Hr counsel shown the photos disclosing the house of witness and he admitted the same and stated the his wife is selling sarees from his house in the name of

Kalyani Saree center and he adds that for the maintenance of their family she is doing sarees business. RW1 further admitted that himself and his wife having joint accounts at Andhra Bank, Vinukonda and his wife is also having bank account at State Bank of Hyderabad,

Vinukonda and he do not know whether his wife obtained loan from state bank by mortgaging one house. On perusal of Ex.P1 it is clear that the wife of RW1 mortgaged the house property and obtained loan from the said bank. He further stated that after selling the house belongs to his wife he cleared their family debts the house property is door no.7- 120 shown under Ex.R3. He do not remember whether he stated

before Senior Civil Judge’s court, Narasaraopet in EP 78/16 that he is

living under the mercy of his relatives. He further stated that the house in which presently they are residing is existing in the name of his wife.

He further stated that one Gunda Sathish Kumar brother of D.Hr obtained attachment in Narasarapet court, of his property Ac.1-00 of land at Kondaiahpalem village of Ipuru Mandal and presently the said property is existing in his name only and the property is under dotted land and unable to sell it and that property is also given under settlement. On perusal of above evidence of RW1 it is clear that RW1, his wife and children is living under one roof and the photographs and pamphlets clearly establishes that RW1 and his wife are doing business and the clear admission of DW1 that he is having Ac.1-00 of land at

Kondaiahpalem village which is existing in his name only. The above said admission clearly establishes that the J.Dr is the owner of the property by the date of decree and he is having capacity to earn money by doing business. He denied the suggestion that in order to evade the payment of decree amount he is deposing false. On careful perusal of evidence of RW1 it clearly establishes that J.Dr. has owned properties and he is hale and healthy and he is doing business and his wife also doing saree business. PW1 in his evidence stated that DW1 is having landed property in Kondaiahpalem village an extent of Ac.1-00 cents and house property at Vinukonda and the DW1 admitted the same.

Based on the above discussion this court came to the conclusion that the J.Dr. has owned house and also landed properties and has means to pay the decree amount and avoiding to pay the same to the petitioner.

Since it was either denied or disputed the court can straight away come to a just conclusion that the J.Dr. owned an house property as admitted by DW1. It clearly establishes that J.Dr is having earning capacity and also landed properties. Therefore the court can presume for all practical purposes that the J.Dr. succeeded to the said house and thereby getting the income on agricultural works.

8. Since the D.Hr./ PW1 could successfully place the sufficient material in respect of the financial capacity of the J.Dr. by producing evidence, it is sufficient to hold that the J.Dr. has not been paying the

E.P. amount despite his sources and affluence and therefore it is a fit case to order for arrest. Hence, the petition is allowed with costs. Issue arrest warrant executable on or before 10-07-2019, on payment of process.

Typed to my disctation to the Personal Assistant, corrected and

pronounced by me in open Court, this the 11 th day of June, 2019.

.

Sd/- A. Omkar,

JUNIOR CIVIL JUDGE,

VINUKONDA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER : FOR RESPONDENT :

P.W.1 : G. AnushaRW1: C. Srinivasa Rao P.W.2 : S. Sudhir Kumar

DOCUMENTS MARKED

FOR PETITIONER:

Ex.P1: C.C. of Regd. Mortgage deed dt. 24-03-2019

Ex.P2: Photo number 4 with C.D.

FOR RESPONDENT:

Ex.R1: C.C. in E.P.No.78/16 on the file of P.S.C.J.Court, Narasaraopet

Ex.R2: C.C. of dismissal order in E.P.78/16

Ex.R3: Sale deed executed byw ife of J.Dr. dt. 04-07-2014

Ex.R4: Sale deed executed by him dt. 25-02-2015

Ex.R5: Discharged prontoe exeuted gy him in favour of K. Chinna

Kotaiah

Sd/- A. Omkar,

J.C.J.VNK // True copy //

Junior Civil Judge, Vinukonda.

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE, VINUKONDA.

Present:- Sri A.Omkar Junior Civil Judge, Vinukonda.

Tuesday, this the 17 th day of September, 2019

E.P.No.17/2018 in O.S.No.68/2016

Between:

Daggupati Lakshmaiah …Petitioner/D.Hr

AND

1. Papasani kalavathi

2. Papasani Kalyani.

3. Papasani Gowtham

4. Papasani Gayathri,. ...Respondents/J.Dr

This petition has come before me on 27.08.2019 for final hearing in the presence of Sri.K.Gopinath, Advocate for the petitioner and of Sri. M.N.Prasad, Advocatefor the 1st respondent and Smt/Kum J.A.Mary Advocate for Respondents No.2 to 4 and upon perusing the material on record, this court made the following:

ORDER

1. The E.P is filed by the petitioner/D.Hr against the J.Dr under Order 21 Rule 11 of CPC for attachment of E.P schedule property and sell the same after issuance of Rule 66 notice to the J.Dr and by conducting auction as per Rules 54(A), 66 and 64 under Order 21 CPC.

The order arose at the stage of Rule 66 CPC.

2. It is alleged in the affidavit filed by the D.Hr that after passing the decree by the Hon'ble court the J.Dr intentionally evaded the payment of decretal amount within stipulated time inspite of demands made by the D.Hr. The J.Dr got sufficient means to discharge the decretal debt, the J.Dr making efforts for alienating by creating sham and nominal documents in the E.P schedule property. Hence, the E.P is filed.

3.The J.Drs filed their respective counters and denied all the allegations made in the petition interalia J.Dr No.1 contending that the deceased is the original borrower/ Papasani Ravi Babu had no property and J.Dr No.1 is not having any estate belonging to the original borrower Papasani Ravi Babu and the extent of Ac.2.00 cents of land out of an extent of Ac.3.39 cents situated in S.No.219-B1A of Sanampudi village mentioned in the petition schedule was given to the daughter of the 1st respondent by name Muppalla Kalpana at the time of her marriage 2 as Pasupu Kumkuma and it was registered in her favour on 07.12.2015 under gift deed No.8977/2015. The remaining land is only an extant of

Ac.1.39 cents sold away by the original borrower and his father Papasani

Venkateswarlu to one Narlapati Anjaiah to meet their family expenses and there is no remaining estate belongs to the original borrower and that the attachment of the schedule property is not maintainable under law as it was already alienated prior to the attachment. The J.D.r No.2 to 4 are contending that the schedule property mentioned in the petition is not in the name of the husband of the 2nd J.Dr and father of the J.Drs 3 and 4 and they are not in the possession and enjoyment of the property and there were no landed properties in the name of the late Papasani Ravi

Babu. The decree passed against the Jdrs 2 to 4 are null and void and has no legal effect and it cannot be enforceable and the D.Hr filed this petition for unlawful gain.

4.Heard on both sides and now the short point for consideration is:- 1.whether the petitioner is entitled for sale of the E.P scheduled property for realization of the decretal amount as prayed for?

2.To what result.?

5. During the course of enquiry the petitioner examined himself as

P.w.1 and and respondent no.2 is examined as R.w.1 and no documents are marked on both sides.

POINT:

6. In order to prove his case the petitioner has filed his chief affidavit which is the replica of the Petition and it is the case of the D.Hr that the J.Drs inspite of passing the decree on 04.12.2017 did not choose to pay the amount and he demanded the J.Drs for several times but failed to pay the debt amount and giving evasive replies. D.Hr made demands and he approached the J.Drs for realization of decreatal amount and the matter is placed before the elders and the J.Drs agreed to give amount in the presence of mediator by name Kolli Subbarao and requested time for payment but J.Dr did not choose to pay the amount. The estate of the deceased is in the hands of the J.Dr. During the course of cross examination of the D.Hr, he denied all the suggestions put forth to him by the counsel for the Jdrs. He deposed that he did not prefer any appeal 3 based on the decree passed by this court as no relief was granted against the 1st J.Dr.

7. On the other hand it is submitted on behalf of J.Dr.1 that the decree was passed against Jd.r 2 to 4 only and she has no liability to pay the debt and she is not in the estate of the deceased, hence prays to dismiss the Petetion agaisnt J.dr.1 and she did not file her evidence on her behalf as she has no liabilty as per decree in O.S.68/2016

8. The respondent.no.2 filed her chief affidavit by stating that there were no landed properties in the name of the late Papasani Ravi Babu and the decree passed against the Jdrs 2 to 4 are null and void and has no legal effect and it cannot be enforceable and the D.Hr filed this petition for unlawful gain. The counsel submits on behalf of J.D.r No.2 to 4 that the schedule property mentioned in the petition is not in the name of the husband of the 2nd J.Dr and father of the J.Drs 3 and 4 and they are not in the possession and enjoyment of the property and there were no landed properties in the name of the late Papasani Ravi Babu.

9. During the course of cross examination of R.w.1(J.dr.2) she deposed that she is residing at her parents house and till today there are some family disputes between her and her mother-in-law after the death of her husband and she does not know the purpose of the petition filed by the petitioner and she knows her father-in-law having agricultural land at

Sanampudi village. She deposed that she did not prefer appeal on the decree passed against them. She deposed that her father-in-law has

executed a registered gift deed in favour of her daughter in

order to evade her share and she does not know whether the

petition schedule property is in the hands of her father-in-law or

not. She deposed that her father-in-law has informed at the time of marriage they are having Ac.5.00 cents of land at Sanampudi village and they promised to gift total extent to her husband, she does not know the total extent of land at Sanampudi village is Ac.5.00 cents of land, but it is only AC 3.39 cents of land. She deposed that herself asked her father-in- law to transfer their share in petition schedule property after death of her husband and she does not know whether her father-in-law promised to transfer their share after settlement of all disputes and debts of her deceased husband.

4

10. Once the decree is passed it is the obligation of the J.Dr to pay the amount. The main contention of Respondent no.1(J.Dr.1) is decree was passed against Jdr.2 to 4 and J.dr.1 has no liability to pay the debt amount as there was some correction at Decree portion in O.S.68/2016 as “Defendnats 1 to 4, but it is appearing as defendants 2 to 4”. This court observed that the correction is “defendants 1 to 4 only but not defendants 2 to 4” i.e., Jd.r 1 to 4 are liable to pay the decree amount out of the estate of the deceased. So the contention of the Respondent no.1 is not taken into conisderation.

11. Whereas the respondent 2 to 4 contends that they are not in possession and enjoyment of the property and there are no properties in the name of Deceased borrower/Papasani Ravi Babu. But the respondent 2 did not file any documentary proof to show the petition schedule property is not in the hands of Respondents.2 to 4. If really the petition schedue property is not in the hands of Jd.r 1 to 4 and it is in the hands of third parties, there should be a claim petiton filed by the person in whose possession the property is, opposing the attachment of schedule property.

The petition schedule property was attached under Rule 54-A CPC on 23- 04-2018 and no one objected for attachment and this court can presume that the schedule property is in the hands of Respondnets only. Hence this court has no hesitation to allow the petition and sell the property by way of auction to realize the debt of Petitioner. Accordingly, this point is answered.

12.In the result the petition is allowed and the Petitioner/D.Hr is hereby permitted to recovery of E.P amount by sale of the petition schedule property in Court auction.

Typed by me directly on my laptop, corrected and pronounced by me in the open Court on this 17th day of September, 2019.

Sd/-A.Omkar

JUNIOR CIVIL JUDGE,

VINUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner/D.Hr For Respondent/J.Dr

PW.1: Daggupati lakshmaiahRW.1: Papasani Kalyani

DOCUMENTS MARKED:- Nil on both sides.Sd/-A.Omkar J.C.J,

VKD.,

1

IN THE COURT OF THE JUNIOR CIVIL JUDGE, VINUKONDA.

Present:- Sri A.Omkar Junior Civil Judge, Vinukonda.

Tuesday, this the 17 th day of September, 2019

E.P.No.17/2018 in O.S.No.68/2016

Between:

Daggupati Lakshmaiah …Petitioner/D.Hr

AND

1. Papasani kalavathi

2. Papasani Kalyani.

3. Papasani Gowtham

4. Papasani Gayathri,. ...Respondents/J.Dr

This petition has come before me on 27.08.2019 for final hearing in the presence of Sri.K.Gopinath, Advocate for the petitioner and of Sri. M.N.Prasad, Advocatefor the 1st respondent and Smt/Kum J.A.Mary Advocate for Respondents No.2 to 4 and upon perusing the material on record, this court made the following:

ORDER

1. The E.P is filed by the petitioner/D.Hr against the J.Dr under Order 21 Rule 11 of CPC for attachment of E.P schedule property and sell the same after issuance of Rule 66 notice to the J.Dr and by conducting auction as per Rules 54(A), 66 and 64 under Order 21 CPC.

The order arose at the stage of Rule 66 CPC.

2. It is alleged in the affidavit filed by the D.Hr that after passing the decree by the Hon'ble court the J.Dr intentionally evaded the payment of decretal amount within stipulated time inspite of demands made by the D.Hr. The J.Dr got sufficient means to discharge the decretal debt, the J.Dr making efforts for alienating by creating sham and nominal documents in the E.P schedule property. Hence, the E.P is filed.

3.The J.Drs filed their respective counters and denied all the allegations made in the petition interalia J.Dr No.1 contending that the deceased is the original borrower/ Papasani Ravi Babu had no property and J.Dr No.1 is not having any estate belonging to the original borrower Papasani Ravi Babu and the extent of Ac.2.00 cents of land out of an extent of Ac.3.39 cents situated in S.No.219-B1A of Sanampudi village mentioned in the petition schedule was given to the daughter of the 1st respondent by name Muppalla Kalpana at the time of her marriage 2 as Pasupu Kumkuma and it was registered in her favour on 07.12.2015 under gift deed No.8977/2015. The remaining land is only an extant of

Ac.1.39 cents sold away by the original borrower and his father Papasani

Venkateswarlu to one Narlapati Anjaiah to meet their family expenses and there is no remaining estate belongs to the original borrower and that the attachment of the schedule property is not maintainable under law as it was already alienated prior to the attachment. The J.D.r No.2 to 4 are contending that the schedule property mentioned in the petition is not in the name of the husband of the 2nd J.Dr and father of the J.Drs 3 and 4 and they are not in the possession and enjoyment of the property and there were no landed properties in the name of the late Papasani Ravi

Babu. The decree passed against the Jdrs 2 to 4 are null and void and has no legal effect and it cannot be enforceable and the D.Hr filed this petition for unlawful gain.

4.Heard on both sides and now the short point for consideration is:- 1.whether the petitioner is entitled for sale of the E.P scheduled property for realization of the decretal amount as prayed for?

2.To what result.?

5. During the course of enquiry the petitioner examined himself as

P.w.1 and and respondent no.2 is examined as R.w.1 and no documents are marked on both sides.

POINT:

6. In order to prove his case the petitioner has filed his chief affidavit which is the replica of the Petition and it is the case of the D.Hr that the J.Drs inspite of passing the decree on 04.12.2017 did not choose to pay the amount and he demanded the J.Drs for several times but failed to pay the debt amount and giving evasive replies. D.Hr made demands and he approached the J.Drs for realization of decreatal amount and the matter is placed before the elders and the J.Drs agreed to give amount in the presence of mediator by name Kolli Subbarao and requested time for payment but J.Dr did not choose to pay the amount. The estate of the deceased is in the hands of the J.Dr. During the course of cross examination of the D.Hr, he denied all the suggestions put forth to him by the counsel for the Jdrs. He deposed that he did not prefer any appeal 3 based on the decree passed by this court as no relief was granted against the 1st J.Dr.

7. On the other hand it is submitted on behalf of J.Dr.1 that the decree was passed against Jd.r 2 to 4 only and she has no liability to pay the debt and she is not in the estate of the deceased, hence prays to dismiss the Petetion agaisnt J.dr.1 and she did not file her evidence on her behalf as she has no liabilty as per decree in O.S.68/2016

8. The respondent.no.2 filed her chief affidavit by stating that there were no landed properties in the name of the late Papasani Ravi Babu and the decree passed against the Jdrs 2 to 4 are null and void and has no legal effect and it cannot be enforceable and the D.Hr filed this petition for unlawful gain. The counsel submits on behalf of J.D.r No.2 to 4 that the schedule property mentioned in the petition is not in the name of the husband of the 2nd J.Dr and father of the J.Drs 3 and 4 and they are not in the possession and enjoyment of the property and there were no landed properties in the name of the late Papasani Ravi Babu.

9. During the course of cross examination of R.w.1(J.dr.2) she deposed that she is residing at her parents house and till today there are some family disputes between her and her mother-in-law after the death of her husband and she does not know the purpose of the petition filed by the petitioner and she knows her father-in-law having agricultural land at

Sanampudi village. She deposed that she did not prefer appeal on the decree passed against them. She deposed that her father-in-law has

executed a registered gift deed in favour of her daughter in

order to evade her share and she does not know whether the

petition schedule property is in the hands of her father-in-law or

not. She deposed that her father-in-law has informed at the time of marriage they are having Ac.5.00 cents of land at Sanampudi village and they promised to gift total extent to her husband, she does not know the total extent of land at Sanampudi village is Ac.5.00 cents of land, but it is only AC 3.39 cents of land. She deposed that herself asked her father-in- law to transfer their share in petition schedule property after death of her husband and she does not know whether her father-in-law promised to transfer their share after settlement of all disputes and debts of her deceased husband.

4

10. Once the decree is passed it is the obligation of the J.Dr to pay the amount. The main contention of Respondent no.1(J.Dr.1) is decree was passed against Jdr.2 to 4 and J.dr.1 has no liability to pay the debt amount as there was some correction at Decree portion in O.S.68/2016 as “Defendnats 1 to 4, but it is appearing as defendants 2 to 4”. This court observed that the correction is “defendants 1 to 4 only but not defendants 2 to 4” i.e., Jd.r 1 to 4 are liable to pay the decree amount out of the estate of the deceased. So the contention of the Respondent no.1 is not taken into conisderation.

11. Whereas the respondent 2 to 4 contends that they are not in possession and enjoyment of the property and there are no properties in the name of Deceased borrower/Papasani Ravi Babu. But the respondent 2 did not file any documentary proof to show the petition schedule property is not in the hands of Respondents.2 to 4. If really the petition schedue property is not in the hands of Jd.r 1 to 4 and it is in the hands of third parties, there should be a claim petiton filed by the person in whose possession the property is, opposing the attachment of schedule property.

The petition schedule property was attached under Rule 54-A CPC on 23- 04-2018 and no one objected for attachment and this court can presume that the schedule property is in the hands of Respondnets only. Hence this court has no hesitation to allow the petition and sell the property by way of auction to realize the debt of Petitioner. Accordingly, this point is answered.

12.In the result the petition is allowed and the Petitioner/D.Hr is hereby permitted to recovery of E.P amount by sale of the petition schedule property in Court auction.

Typed by me directly on my laptop, corrected and pronounced by me in the open Court on this 17th day of September, 2019.

Sd/-A.Omkar

JUNIOR CIVIL JUDGE,

VINUKONDA

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Petitioner/D.Hr For Respondent/J.Dr

PW.1: Daggupati lakshmaiahRW.1: Papasani Kalyani

DOCUMENTS MARKED:- Nil on both sides.Sd/-A.Omkar J.C.J,

VKD.,

IN THE COURT OF THE JUNIOR CIVIL JUDGE-CUM-JUDL.

MAGISTRATE OF I CLASS: VINUKONDA

PRESENT:- Sri A. OMKAR,

Junior Civil Judge, Vinukonda.

Wednesday, the 20th day of November, 2019

EP No.09/2017 in O.S.No.155/2012

Between:

Chintha Ramanjaneyulu,S/o Satyanarayana, 40 years, Hindu, R/o Mathukumalli village H/o Sanampudi village, Savalayapuram mandal.

Petitioner/D.Hr

And

Bolla Gopi S/o Kondaiah<'40 years, Karumanchi village, Savalyapuram Mandal.

Respondent/J.Dr

This petition is coming on 15.11.2019 before me for hearing in the presence of Sri Y.Srinivasarao and Sri A.Ajay Babu, Advocates for the Petitioner/D.Hr and of Sri C.Veeranjaneya Chowdary and Sri

Mahammod Khasim, Advocates for the Respondent, upon hearing and considering the material on record, having stood over for consideration till this day, this Court made the following:

ORDER

This is an execution petition filed by the petitioner/D.Hr.,

against the J.Dr., U/o.XXl Rule, 54-A(I) 64, 66 of CPC., seeking attach and sale of the petition schedule property and issue proclamation and sale of the property for realization of the E.P., amount.

The brief averments of the petition that the D.Hr., filed the

02.

suit for recovery of money based on the promissory note. After full trial, this Court passed a decree in favour Of the D.Hr., against the J.Dr., for decretal amount. The J.Dr is having ancestral properties which belongs to father of J.Dr, who is enjoying with peaceful possession without any obstruction from anybody With absolute right and title. The J Dr has got 1/3rd share in the petition schedule property at Karumanchl village of

Savalyapuram Mandal, Guntur District in S.No.322-2 an extent of Ac 1 B/ cents and in S.No.322-3-2 an extent of Ac 1-10 cents and total extent of

Ac 2-67 cents wet land up raising paddy and getting per annum and sharing into 3 equal parts. Besides that the J.Dr is having job in Private Company and receiving Rs.20,000/- per month salary and the parents of the J.Dr are milk vendors in the village and getting

Rs.1,00,000/- per annum and also having equal share to J.Dr. Further contention of the D.Hr., is that the J.Dr., failed to pay and satisfy the decretal amount. Hence, filed this petition for attachment of the petition schedule property proclaim, public and sell E.P., schedule property to realize the decretal amount.

03. The respondent filed counter denied all the allegations made in the petition and interalia submitted that the boundaries mentioned in the petition schedule property is absolutely false, the survey numbers mentioned in the petition is the absolute property of third parties. The property mentioned in the affidavit is that of his father's personal property, the J.Dr is having no source of income as such has no sufficient means to satisfy the decretal amount and the D.Hr knowing pretty well, suppressing all real state of facts, filed present petition for wrongful gam and prayed to dismiss the E.P., with costs.

04. During course of enquiry, the petitioner/D.Hr., himself examined as P.W.I and Ex.PI was marked on his behalf and on behalf of the respondent/J.Dr., no oral or documentary evidence was adduced.

05. Heard on both the sides. Perused the record.

06. Now the point for consideration is:

1. Whether the petitioner is entitled for relief as prayed for?

2. To, what relief?

07. POINT: The case of the petitioner is that he filed suit for recovery of amount based on the promissory note• After full trial this Court passed the decree in his favour and against the J Dr ' on 20.08.2014. The J Dro intentionally having propenjes

landed propeny an j "

of Ac 10

Savaiayapuracn

08case ot the

property and he no Gt to Soti%fy the retal 09To the ( ) PW 1 and filed chief affidavit that ho obtained tho (Jer roe:

to sotl%fy the decretol amount / J ror, discharge the decretal amount, the J Or

Job jn a private company. The J,Dr is hautng

Ac 1.597 cents In S.No.322-2 and an extent of 1. Z % e 3-2 situated In Karumanchi village of attach the E.P., schedule property and auction for the realization of the decretal amou n t appear before this court for adducvng h s e, opportunities given to the respondent, the resoc----• evidence. No instructions to counsel. hence, closed.

10.- On perusal of the record, after comp i et

- - -

s. : :

evidence, the J.Dr., failed to attend before this cou rt

Hence, his side evidence is closed The J Dr Sent

Into witness box to establish his case. The smpte case 2 - he has no anscestral property and he has no the decretal amount and the E P, schedule party Attachment was affected on C)? 01 201S come forward to file any claim petition that E P belongs to him and tutther J not Or ta,.eo • documentary evidence to suppott his

the

trustMorthlness of the PW I

Circumstances it was held (hat

/ditz

Maharashtra (2001) 1 Born. LR 369 equallent citation 2000 (4) MhLJ 581 Conditions for attachment U/o.XXl Rule 54 CPC., that the conditions for attachment of immovable property are mandatory in nature and, therefore, it is necessary for the attachment to be effective, the strict compliance is very much necessary.

11.

The attachment under Or.XXl Rule 54 (I-A) of CPC. , which mandates: The compulsory sale Of immovable property under Order XXI divests right, title and interest Of the judgment debtor and confers those rights, in favour of the purchaser It thereby deals with the rights and disabilities either of the judgment debtor or the decree holder. A sale made, therefore, without notice to the judgment debtor is a nullity since it divests the judgment debtor Of his right, title and interest in his property without an opportunity. The jurisdiction to sell the property would arise in a Court only where the owner is given notice of the execution for attachment and sale of his property. It is very salutary that a person's property cannot be sold without his being told that it is being +0 sold and given an opportunity to offer his estimate as he is the person who intimately knew the value of his property and prevailing in the locality, exaggeration may at time be possible. It is well settled law that a sale without notice to the judgment debtor is a nullity. When a property is put up for auction to satisfy a decree of the Court, it is mandatory for the Court executing the decree, to comply with the following stages before a property is sold in execution of a particular decree.

(a) Attachment of the immovable property;

(b) Proclamation of sale by Public Auction;

(c) Sale by Public Auction.

Rule 54 provides for the attachment of immovable property and the procedure for proclamation of such attachment, In order to minimise the delay in execution of decree this sub-rule (I-A) was inserted to provide that the order shall also specify a date on which the judgment- debtor is to attend the Court to take notice of the date fixed for setting the terms of proclamation (SOR). From a reading of the provisions of this rule, it is clear that even at the stable of attachment of immovable property, the code as amended in 1976 requires that the Judgment- debtor should be given notice to attend the Court on a specified date to be fixed for settling the terms of proclamation of sale. In the present case notice is issued and served on J.Dr., he appeared before the Court and cross examined the D.Hr.,/P.W.1. In view of the above said facts and circumstances of this case, this E.P., is liable to be allowed.

In the result, the petition is allowed at the stage of Rule 54 of 12. Or.XXl of CPC., Attachment affected on 07.07.2018 IS hereby made absolute and proceeded further for proclamation and sale.

Typed to my dictation, corrected and pronounced by me in open Court, this the 20 th day of November, 2019. Civil Judgé c l v Junior Vinukonda Appendix of Evidence Witnesses ExaminedFor Respondent:

For Petitioner:

NONE -

P.W.1-Chintha RamanjaeyuluExhibits Marked

For Respondent:

For Petitioner:

NIL po/u Ex.P1 - C.C of Adangal.

JCL VKD.

c.)