Smt. P. Kamala Devi

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IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE: GUNTUR

Prsent: Smt. P. Kamala Devi, B.Com., B.L., IV Addl. Senior Civil Judge, Guntur.

Wednesday, this the 20th day of September, 2017

E.P.No. 152/2016 in O.S. 172/2012

Between:

Gajula Subba Rao, S/o.Sambasiva Rao, aged 50 yrs, Hindu, R/o.Ramanamakshetram,

R.Agraharam, D.No.5-3-25, Guntur.... Decree-Holder

And

Vullam Sankara Rao, S/o.Pothu Raju, aged 50 yrs, Hindu, R/o.D.No.2/249, Near Sivalayam, Pedakakani post & mandal, Guntur District.... Judgment debtor

This Execution Petition is coming on 12.9.2017 for final hearing

before me in the presence of Sri Ch.Bolla Rao, Advocate for D.Hr, and of

Sri Lella Nageswara Rao, Advocate for J.Dr, and upon perusing the material on record and having considered the matter, this court delivered the following:

O R D E R

The Execution Petition has been filed Under Order-21

Rules 37, 38 of CPC to issue arrest warrant against J.Dr and send him in civil prison to realize the decree amount.

2.The case of the Decree-holder as per the affidavit filed in support of Execution Petition is as follows:

D.Hr obtained decree against the J.Dr for recovery of the amount. Subsequent to decree inspite of repeated demands made by the D.Hr, the J.Dr did not pay the amount inspite of having sufficient means to pay the decree amount at a time. J.Dr is doing several businesses like real estate, construction works and lorry brokerage and 2 earning Rs. 2 to 3 lakhs per month. Inspite of having means, J.Dr did not pay the decree amount. Therefore, the D.Hr is constrained to file this E.P.

3.Judgment-debtor filed counter denying the most of the allegations mentioned in the affidavit in support of the execution petition and submitted as follows :

Inspite of having knowledge that J.Dr is not having any immovable properties, the D.Hr filed I.A.142/2012 in this suit under

Order-38 Rule-5 CPC and obtained attachment orders from this court.

J.Dr is not doing any business as alleged in the E.P affidavit and he is not having any movable or immovable properties and not doing any private job. J.Dr and his family members are attending to daily coolie work to get their livelihood. His income is not sufficient to maintain his family.

Taking into consideration of poverty of J.Dr, the Government Revenue authorities issued a white Civil Supplies Card and Aarogyasri card to J.Dr.

J.Dr is being a tenant shifting his family from one place to another place and going to file an I.P. He is suffering with body ailments of Diabetes,

Hypertension, Rheumatic pains and Doctor advised him to take complete bed rest by using medicines continuously, as such he became a sick person and even did not attend to his normal duties and also became dependent upon his family members. He being a driver in his past life used to assist junior drivers to show national routes and getting meagre income from them. With that he used to purchase the medicines for his ailments. He is not in a position to pay the E.P amount. Therefore, he prays to dismiss the E.P.

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4.During the course of enquiry, the D.Hr himself is examined as P.W.1 and he examined two other persons as P.Ws.2 and 3 besides marking Ex.P1.

5.J.Dr himself is examined as R.W.1 and marked Ex.R1 to Ex.R3.

6.Heard both sides.

7.Perused the record.

8.Now the point for consideration is :

“Whether the D.Hr is entitled to seek arrest

warrant against J.Dr in order to realize the E.P

amount ?”

9. P O I N T :

The case of D.Hr in brief is that, he obtained decree against the J.Dr for recovery of the amount. Subsequent to decree inspite of repeated demands made by him, J.Dr did not pay the amount inspite of having sufficient means to pay the decree amount at a time. J.Dr is doing several businesses like real estate, construction works and lorry brokerage and earning Rs. 2 to 3 lakhs per month. Inspite of having means, J.Dr did not pay the decree amount. Therefore, he is constrained to file this E.P.

10.The case of J.Dr in brief is that inspite of having knowledge that he is not having any immovable properties, D.Hr filed I.A.142/2012 in this suit under Order-38 Rule-5 CPC and obtained attachment orders from this court. He is not doing any business as alleged in the E.P 4 affidavit and he is not having any movable or immovable properties and not doing any private job. He and his family members are attending to daily coolie work to get their livelihood. His income is not sufficient to maintain his family. Taking into consideration of his poverty, the

Government Revenue authorities issued a white Civil Supplies Card and

Aarogyasri card to him and he is being a tenant shifting his family from one place to another place and going to file an I.P. He is suffering with body ailments of Diabetes, Hypertension, Rheumatic pains and Doctor advised him to take complete bed rest by using medicines continuously, as such he became a sick person and even did not attend to his normal duties and also became dependent upon his family members. He being a driver in his past life used to assist junior drivers to show national routes and getting meagre income from them. With that he used to purchase the medicines for his ailments and that he is not in a position to pay the E.P amount. Hence, he prays to dismiss the E.P.

11.In order to prove the means of J.Dr, the D.Hr himself is examined as P.W.1 besides examining two other persons as P.Ws.2 & 3.

12.P.W.1 swore in his chief affidavit in the same lines of affidavit filed in support of Execution Petition.

13.P.W.2 swore in his chief affidavit that J.Dr is doing real estate business and used to get Rs.50,000/- to Rs.1,00,000/- per month as commission from their real estate business. He further swore that J.Dr is having lorry in the name of his wife and also having CB Unicorn of Honda

Company motor cycle.

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14.P.W.3 swore in his chief affidavit that J.Dr is having lorry bearing No.AP 07 Y 4759. He further swore that J.Dr sold his site to one

Kishore of Hyderabad for a sum of Rs.5000/- per sq.yard i.e., (Rs.5000 X 275 sq.yards) and on that he gave commission of Rs.27,400/- @ 2% on total amount and that J.Dr also get sale amount as commission from the purchaser by name Kishore. He further swore that if J.Dr worked as

Driver, on National Permit Lorry, he will get an amount of Rs.50,000/- per month as driver.

15.In cross examination of P.W.1, it was elicited that the motor cycle shown under Ex.P1 is under hypothecation and the same was reflected in Ex.P1. Though P.W.1 deposed in his cross examination that he has not filed any document to show that J.Dr is having sufficient means to pay the E.P amount in lumpsum, he examined P.Ws.2 and 3 to prove the means of J.Dr. There is no cross examination to P.W.2 that J.Dr is having lorry in the name of his wife and he is getting Rs.50,000/- per month as commission from the real estate business. But it was suggested to P.W.2 by the counsel for the J.Dr that all the contents in his chief affidavit regarding the means of J.Dr are false. For which, P.W.2 denied the said suggestion. It was not suggested to P.W.2 by the counsel for the J.Dr that J.Dr is not doing any real estate business and that no lorry stands in the name of J.Dr’s wife. Moreover there is also no cross examination on that aspect. Therefore, this court can safely concluded that J.Dr is doing real estate business and earning amount and that a lorry stands in the name of J.Dr’s wife.

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16.Coming to cross examination of P.W.3 also there is no cross examination by the counsel for the J.Dr or even suggestion regarding the owning of lorry to J.Dr bearing No.AP 07 Y 4759 and receiving of commission from P.W.3 and purchaser by J.Dr as mentioned in his chief affidavit. So, this court can safely draw the conclusion that J.Dr is doing real estate business and earning sufficient means and that J.Dr is also having lorry.

17.Coming to cross examination of R.W.1, though he deposed that he never signed as lorry driver before check post while the lorry was going to Goa, but he himself admitted in his subsequent cross examination that he signed as a driver of lorry bearing No.AP 07 Y 4759 on 16.7.2017 which was the consignment of Savan Transport Private

Limited. So, the said admission of J.Dr himself clinchingly establishes that this J.Dr is not telling truth and he is changing his version from time to time as per his convenience in order to avoid the payment of E.P amount. If really the J.Dr is not working as lorry driver, he should not supposed to sign as driver on AP 07 Y 4759 on 16.7.2017. The admission of singing as a driver of a lorry by J.Dr itself proves that he is still working as lorry driver and earning amount. The said statement itself falsifies the case of J.Dr that he is suffering with illness and not in a position to do any work and depending on others. Though J.Dr filed

Ex.R1 to Ex.R3 to show his financial status or means, but in the light of above mentioned circumstances, it makes clear that J.Dr is doing real estate business and working as lorry driver and earning sufficient 7 amount and he is hale and healthy and that his entire defence pleaded in his counter is false.

18.The learned counsel for J.Dr relied upon decisions reported in (1980) 2 Supreme Court Cases 360; AIR 2004 ANDHRA PRADESH 518 and AIR 2004 MADRAS 78. The findings and observations relied upon by the counsel for J.Dr are not applicable to the present facts on hand as the facts and circumstances of both the cases are not one and the same.

19.Moreover R.W.1 himself admitted in his cross examination that it is his job to escape liability to finance persons, as such he raised his beard. So the attitude and conduct of J.Dr indicates that J.Dr though having sufficient means to pay the E.P amount in lumpsum deliberately avoiding to pay it. In those circumstances, I am of the view that it is just and proper to issue arrest warrant against J.Dr in order to realize the E.P amount. Therefore, I hold that D.Hr is entitled for the relief as prayed for. Accordingly, this point is answered.

20.In the view of findings in the above point, this E.P is liable to be allowed.

In the result, E.P is allowed. Issue arrest warrant against J.Dr.

For report. Call on 20.10.2017.

Dictated to the Personal Assistant, transcribed by her,

corrected and pronounced by me in the open court on this the 20th day of September, 2017.

Sd/­ P.Kamala Devi

IV ADDL. SENIOR CIVIL JUDGE,

GUNTUR.

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APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Decree-Holder : For Judgment-debtor :

P.W.1 : Gajula Subba Rao.R.W.1 : V.Sankara Rao.

P.W.2 : Shaik Saleem.

P.W.3 : V.Aljya Kumar.

DOCUMENTS MARKED

For Decree-Holder :

Ex.P1 : B-registration extract showing the motor cycle bearing No.AP 07 BH 5459 stands in the name of J.Dr.

For Judgment-debtor :

Ex.R1 : Swathi X-Ray Institute Lab reports (2 in number) relating to U.Sankar Rao (J.Dr)

Ex.R2 : Household white card.

Ex.R3 : N.T.R Vaidya Seva health card.

Sd/­ P.Kamala Devi

IV A.S.C.J., Gnt.

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IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE: GUNTUR

Present: Smt. P.Kamala Devi, B.Com., B.L., IV Addl. Senior Civil Judge, Guntur.

Monday, this the 18th day of September, 2017.

Original Suit No. 597 of 2015

Between:

Urlagunda Pakeeraiah, S/o.Rangaiah, aged 62 yrs, Hindu, Retired employee, R/o.D.No.6-30-123/B13, Rajeev Gandhi Rajaka colony, Pitchukalagunta,

10/3, Arundelpet, Guntur.... Plaintiff

And

Davuluru Kristu Kumar Raja, S/o.Sambaiah, Hindu, Business, R/o.D.No.10/3, Arundelpet, Rajeev Gandhi Rajaka colony,

Pitchukalagunta, Guntur.... Defendant

This suit has come before me on 14.9.2017 for final hearing in the presence of Sri P.Anil Kumar, Advocate for the plaintiff and the defendant remained exparte and upon perusing the material on record and having considered the matter till this day, this court delivered the following:-

J U D G M E N T

This suit has been filed for recovery of the amount basing on the promissory note.

2.The case of plaintiff as per the plaint averments in brief is as follows :

Defendant borrowed an amount of Rs.5,00,000/- from the plaintiff on 6.3.2014 for his family expenses and executed promissory 2 note on the same day in favour of plaintiff agreeing to repay the same with interest @ 24% per annum either to the plaintiff or to his order on demand. Subsequently, the plaintiff made several demands personally and through mediators to repay the amount due under the pronote, but the defendant did not choose to repay the same. Therefore, the plaintiff is constrained to file this suit.

3.After receipt of summons, the defendant appeared before the court and filed written statement. Thereafter, this court framed the issues. When the matter is coming for examination of P.W.1, the defendant did not appear before the court and he was set exparte.

4.During the course of enquiry, the plaintiff himself is examined as P.W.1 and he examined one other person who is said to be scribe of the suit pronote as P.W.2 besides marking Ex.A1.

5.Now the point for consideration is :

"Whether the plaintiff is entitled for the

suit amount and he is entitled for the

decree as prayed for ?"

6. P O I N T :

In order to prove the case of plaintiff, the plaintiff himself is examined as P.W.1 besides examining one other person who is said to be scribe of the suit pronote as P.W.2.

7.P.W.1 swore in his chief affidavit in the same lines of plaint averments.

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8.P.W.2 swore in his chief affidavit that on 6.3.2014 the defendant borrowed an amount of Rs.5,00,000/- from the plaintiff and executed promissory note in favour of plaintiff. He further swore that one Nuthalapati Raja Sekhar and D.Sambasiva Rao signed as attestor on the suit pronote and it was scribed by him and that the entire transaction took place in their presence.

9.The evidence of P.Ws.1 and 2 remains unchallenged. Their evidence is proving the contents of suit promissory note under Ex.A1 executed by the defendant in favour of plaintiff. The evidence of P.Ws.1 and 2 coupled with Ex.A1 proves that the plaintiff is entitled for the suit amount and the suit is liable to be decreed. Accordingly, this point is answered.

10.In the result, the suit is decreed for Rs.6,89,333/- with costs and subsequent interest at 6% per annum from the date of suit till the date of realization on the principal amount of Rs.5,00,000/-.

Typed to my dictation to the Personal Assistant, corrected and pronounced by me in the open Court on this the 18th day of September, 2017.

IV ADDL. SENIOR CIVIL JUDGE,

GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff : For Defendant :

P.W.1 : Urlagunda Pakeeraiah. Exparte.

P.W.2 : Dusari Srinivasa Rao.

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DOCUMENTS MARKED

For Plaintiff :

Ex.A1 : Original Promissory note dt.6.3.2014.

For Defendant : NIL.

IV A.S.C.J., Gnt.

1

IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE: GUNTUR

Present: Smt. P.Kamala Devi, B.Com., B.L., IV Addl. Senior Civil Judge, Guntur.

Monday, this the 18th day of September, 2017.

Original Suit No. 597 of 2015

Between:

Urlagunda Pakeeraiah, S/o.Rangaiah, aged 62 yrs, Hindu, Retired employee, R/o.D.No.6-30-123/B13, Rajeev Gandhi Rajaka colony, Pitchukalagunta,

10/3, Arundelpet, Guntur.... Plaintiff

And

Davuluru Kristu Kumar Raja, S/o.Sambaiah, Hindu, Business, R/o.D.No.10/3, Arundelpet, Rajeev Gandhi Rajaka colony,

Pitchukalagunta, Guntur.... Defendant

This suit has come before me on 14.9.2017 for final hearing in the presence of Sri P.Anil Kumar, Advocate for the plaintiff and the defendant remained exparte and upon perusing the material on record and having considered the matter till this day, this court delivered the following:-

J U D G M E N T

This suit has been filed for recovery of the amount basing on the promissory note.

2.The case of plaintiff as per the plaint averments in brief is as follows :

Defendant borrowed an amount of Rs.5,00,000/- from the plaintiff on 6.3.2014 for his family expenses and executed promissory 2 note on the same day in favour of plaintiff agreeing to repay the same with interest @ 24% per annum either to the plaintiff or to his order on demand. Subsequently, the plaintiff made several demands personally and through mediators to repay the amount due under the pronote, but the defendant did not choose to repay the same. Therefore, the plaintiff is constrained to file this suit.

3.After receipt of summons, the defendant appeared before the court and filed written statement. Thereafter, this court framed the issues. When the matter is coming for examination of P.W.1, the defendant did not appear before the court and he was set exparte.

4.During the course of enquiry, the plaintiff himself is examined as P.W.1 and he examined one other person who is said to be scribe of the suit pronote as P.W.2 besides marking Ex.A1.

5.Now the point for consideration is :

"Whether the plaintiff is entitled for the

suit amount and he is entitled for the

decree as prayed for ?"

6. P O I N T :

In order to prove the case of plaintiff, the plaintiff himself is examined as P.W.1 besides examining one other person who is said to be scribe of the suit pronote as P.W.2.

7.P.W.1 swore in his chief affidavit in the same lines of plaint averments.

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8.P.W.2 swore in his chief affidavit that on 6.3.2014 the defendant borrowed an amount of Rs.5,00,000/- from the plaintiff and executed promissory note in favour of plaintiff. He further swore that one Nuthalapati Raja Sekhar and D.Sambasiva Rao signed as attestor on the suit pronote and it was scribed by him and that the entire transaction took place in their presence.

9.The evidence of P.Ws.1 and 2 remains unchallenged. Their evidence is proving the contents of suit promissory note under Ex.A1 executed by the defendant in favour of plaintiff. The evidence of P.Ws.1 and 2 coupled with Ex.A1 proves that the plaintiff is entitled for the suit amount and the suit is liable to be decreed. Accordingly, this point is answered.

10.In the result, the suit is decreed for Rs.6,89,333/- with costs and subsequent interest at 6% per annum from the date of suit till the date of realization on the principal amount of Rs.5,00,000/-.

Typed to my dictation to the Personal Assistant, corrected and pronounced by me in the open Court on this the 18th day of September, 2017.

IV ADDL. SENIOR CIVIL JUDGE,

GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff : For Defendant :

P.W.1 : Urlagunda Pakeeraiah. Exparte.

P.W.2 : Dusari Srinivasa Rao.

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DOCUMENTS MARKED

For Plaintiff :

Ex.A1 : Original Promissory note dt.6.3.2014.

For Defendant : NIL.

IV A.S.C.J., Gnt.

1

IN THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE: GUNTUR

Present: Smt. P.Kamala Devi, B.Com., B.L., IV Addl. Senior Civil Judge, Guntur.

Monday, this the 18th day of September, 2017.

Original Suit No. 597 of 2015

Between:

Urlagunda Pakeeraiah, S/o.Rangaiah, aged 62 yrs, Hindu, Retired employee, R/o.D.No.6-30-123/B13, Rajeev Gandhi Rajaka colony, Pitchukalagunta,

10/3, Arundelpet, Guntur.... Plaintiff

And

Davuluru Kristu Kumar Raja, S/o.Sambaiah, Hindu, Business, R/o.D.No.10/3, Arundelpet, Rajeev Gandhi Rajaka colony,

Pitchukalagunta, Guntur.... Defendant

This suit has come before me on 14.9.2017 for final hearing in the presence of Sri P.Anil Kumar, Advocate for the plaintiff and the defendant remained exparte and upon perusing the material on record and having considered the matter till this day, this court delivered the following:-

J U D G M E N T

This suit has been filed for recovery of the amount basing on the promissory note.

2.The case of plaintiff as per the plaint averments in brief is as follows :

Defendant borrowed an amount of Rs.5,00,000/- from the plaintiff on 6.3.2014 for his family expenses and executed promissory 2 note on the same day in favour of plaintiff agreeing to repay the same with interest @ 24% per annum either to the plaintiff or to his order on demand. Subsequently, the plaintiff made several demands personally and through mediators to repay the amount due under the pronote, but the defendant did not choose to repay the same. Therefore, the plaintiff is constrained to file this suit.

3.After receipt of summons, the defendant appeared before the court and filed written statement. Thereafter, this court framed the issues. When the matter is coming for examination of P.W.1, the defendant did not appear before the court and he was set exparte.

4.During the course of enquiry, the plaintiff himself is examined as P.W.1 and he examined one other person who is said to be scribe of the suit pronote as P.W.2 besides marking Ex.A1.

5.Now the point for consideration is :

"Whether the plaintiff is entitled for the

suit amount and he is entitled for the

decree as prayed for ?"

6. P O I N T :

In order to prove the case of plaintiff, the plaintiff himself is examined as P.W.1 besides examining one other person who is said to be scribe of the suit pronote as P.W.2.

7.P.W.1 swore in his chief affidavit in the same lines of plaint averments.

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8.P.W.2 swore in his chief affidavit that on 6.3.2014 the defendant borrowed an amount of Rs.5,00,000/- from the plaintiff and executed promissory note in favour of plaintiff. He further swore that one Nuthalapati Raja Sekhar and D.Sambasiva Rao signed as attestor on the suit pronote and it was scribed by him and that the entire transaction took place in their presence.

9.The evidence of P.Ws.1 and 2 remains unchallenged. Their evidence is proving the contents of suit promissory note under Ex.A1 executed by the defendant in favour of plaintiff. The evidence of P.Ws.1 and 2 coupled with Ex.A1 proves that the plaintiff is entitled for the suit amount and the suit is liable to be decreed. Accordingly, this point is answered.

10.In the result, the suit is decreed for Rs.6,89,333/- with costs and subsequent interest at 6% per annum from the date of suit till the date of realization on the principal amount of Rs.5,00,000/-.

Typed to my dictation to the Personal Assistant, corrected and pronounced by me in the open Court on this the 18th day of September, 2017.

IV ADDL. SENIOR CIVIL JUDGE,

GUNTUR.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintiff : For Defendant :

P.W.1 : Urlagunda Pakeeraiah. Exparte.

P.W.2 : Dusari Srinivasa Rao.

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DOCUMENTS MARKED

For Plaintiff :

Ex.A1 : Original Promissory note dt.6.3.2014.

For Defendant : NIL.

IV A.S.C.J., Gnt.

Case Historyhttp://172.17.58.2/swecourtis/kiosk/cases/case_no.php...

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Daily Status

In the Court of :IV Addl. Senior Civil Judge, Guntur

Case No. :EP/0000334/2009 Lanka subbarao Vs Marri Koteswara Rao

Date : 18-09-2017

Business: EA /17 is filed and allowed. EP is advanced to this date. F.S memo filed by DHR. F.S. recorded. EP is terminated. Attachment is raised. EA /17 is allowed. Nature of Disposal: TERMINATED Disposal Date: 18-09-2017 IV Addl. Senior Civil Judge, Guntur 1 of 104/10/24, 11:01 am