Sri S.v.nelson Raju

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IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

PRESENT: SRI S.V.NELSON RAJU, B.A.,B.L.,

PRINCIPAL JUNIOR CIVIL JUDGE.

Monday, the 28th day of February, 2014

O.S.2326/2005

Between:

1.Anaparthi Nookaratnam, W/o late Hari Mohan, Hindu, aged 58 years, R/t D.No.31-6-13, Allipuram, Ammavari Veedhi, Telaga Veedhi, Visakhapatnam.

2.Ganireddi Apparao, S/o late Appla Swamy, Hindu, aged 70 years, r/t. Rly. Q.No. 663/10, MSM Colony, Gnanapuram, Visakhapatnam.

… Plaintiffs

And

1.Smt. Konada Munniyamma, W/o late Apparao, aged about 65 years, Hindu, r/t. D.No. 31-6-16, Allipuram, Pillivarri Veedhi, Visakhapatnam.

2.Konada Raju, S/o late Apparao, aged about 40 years, Hindu, rest – do -.

3.Konada Ramu, S/o late Apparao, aged about 37 years, Hindu, rest – do -.

4.Konada Dhana, D/o late Apparao, aged about 35 years, Hindu, rest – do -.

5.Konada Kamakshi, D/o late Apparao, aged about 33 years, Hindu, rest – do -.

6.Konada Malli, D/o late Apparao, aged about 30 years, Hindu, rest – do -.

7.Konada Rajeswari, D/o late Apparao, aged about 27 years, Hindu, rest – do -.

8.G.Sujatha, W/o Narayana Rao, aged about 50 years, Hindu, r/t. 45-57-18, Citi Towers, Narasimhanagar, Back side of Raithbazaar, Visakhapatnam.

… Defendants

This suit is coming on 18-02-2014 for final hearing

before me in the presence of Sri D.Ramesh, Advocate for the

Plaintiffs and of Sri M.S.S.Prabhakara Reddy, Advocate for the defendants and the same having stood consideration over this day the court delivered the following:

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J U D G M E N T

1.This suit is filed for permanent injunction restraining the defendants 1 to 8, their men and agents from interfering with the peaceful possession and enjoyment of the suit B-schedule property by the plaintiffs, in any manner what so ever including dispossession from the suit B-schedule property by force or coercion and for costs of the suit.

2.The brief facts of the Plaint are as follows:

The 1st plaintiff purchased a building bearing D.No.31- 6-13, situated in Telega Street, Allipuram, Visakhapatnam, in an extent of 60 sq. yards by virtue of a registered sale deed dt.01-01-1975 from Manga Yellayyamma and some others. The husband of the 1st plaintiff expired. She has no children.

Therefore, living with her elder sister and enjoying the schedule property. The 2nd plaintiff is the husband of the 1st plaintiff's elder sister. The 2nd plaintiff along with his wife and children are also residing in the house belonging to the 1st plaintiff and have been enjoying the same along with the 1st plaintiff. The 1st plaintiff has been paying the property tax to the Municipal

Corporation. There is a vacant space on the west of the building of the 1st plaintiff with the measurements of 78'/19'. The defendants 1 to 7 are having their house to the north of the said vacant space. The 8th defendant is having her residence to the west of the said vacant space. Neither the defendants 1 to 7 nor the 8th defendant has any right or title over the vacant space, which is fully described in the B-schedule. The plaintiffs and their family members are in 3 exclusive possession and enjoyment of the B-schedule vacant space and has also right and title. B-schedule vacant space is not protected by any compound wall or fencing, taking advantage of the same, the defendants tried to interfere with the possession and enjoyment of the plaintiffs over the same. The plaintiffs started constructed of the first floor over the existing ground floor by obtaining permission from the Municipal

Corporation and wanted to store the material required for the construction of the first floor in the B-schedule vacant space.

The defendants 1 to 8 colluded and removed the bricks placed in the B-schedule vacant space 8-8-2005. The plaintiffs ultimately could succeed in stacking the bricks in the B-schedule vacant space. However the defendants 1 to 8 has declared that they will come with rowdy elements and get the bricks removed and occupy the B-schedule vacant space. Hence, the suit.

3.The 1st defendant filed written statement by denying all the averments in the plaint and contended the following:

As per Municipal records A-schedule property bearing

D.No.31-6-13, belonging to the D1 to D7 an the owner of said

D.No. is Konada Appa Rao, who is the husband of D1 and father of D2 to D7, entire house and property get through gift deed which was given by the Konada Rama Swamy father o Konada

Appa Rao and husband to the Konada Mallamma who is mother to the Konada Appa Rao in the year 1928. The municipality authorities also issued assessment No.26455 to the house bearing D.No.31-6-13. The western side property belonging to

Koraganji Appa Rao is not proper. The plaintiffs knows very well 4 the entire property belonging to D1 to D7. With the collusion of

D8 the present suit filed against D1 to D7 to grab the entire property of the D1 to D7. The Municipal notices all are with the influence of the Municipal Authorities without proper verification for obtaining injunction order from this court their filed. The plan also only created for the purpose of this suit no proper documents and link documents and violating the rules of the

Municipal Authorities obtaining this plan on verification by the

Municipal Authorities warren the plaintiffs any constructions made on the schedule property for the violation of the rules demolish the entire property. The registered documents which was produced by the plaintiffs are suspected one with the rules and regulations of the sub-registrar office. The link document in the name of Koraganji Narayanamma which was executed by

Koraganji Appa Rao in the year 1951 as a gift deed only the property is 50 sq. yards but known measurements to east to west north to south and also black and survey numbers also not mentioned in that gift deed. But the plaintiffs registered deed in 1-1-1975 mentioned the measurements east to west and south to north numbers and survey numbers and in this property simply mentioned 60 sq. yards. The measurements mentioned in the registered sale deed or fabricated one without any proof or base. The same persons i.e. vendors of the Anaparthi Nooka

Ratnam executed another registered sale deed in 1981 to one

Gullipilli Sujatha, W/o Narayana Rao 8th defendant for an extent of 60 sq. yards.

4.The husband of 1st defendant late Konada Appa Rao, S/o

Rama Swamy died in the year 1997 who lookafter the 5 affairs of the properties. The said person also addicted some bad habits like drinking, gambling etc., take the advantage of the habits of late K.Appa Rao without any rights they entered into the property of the defendants wrongly claiming that the property belonging to the plaintiff. The elder son of K.Appa Rao by name Konada Satya Rao after the demise of his father he lookafter the affairs of the said houses and sites in that locality he also died in the year 2000 (9-6-2000) due to the all the draw backs and old age of 1st defendant i.e. 60 ill-health, hart-tack,

B.P. Etc deceases and also lady daughters without support of the sons the plaintiff taking advantage and filed this suit to grab the vacant site and property of the defendants. Hence, the suit may be dismiss with costs.

5.As plaintiff counsel filed memo stating that 8th defendant died on 31-5-2008 and reported no steps. This suit against D8 is dismissed on 21-6-2013. Admittedly the 1st plaintiff died on 14-3-2013, who is the owner of the plaint A and B schedule property as per the averments of the plaint.

6.Petition filed by Ganireddy Baburao and Mahadev

Chandi Gowri under Order XXII Rule 3 in IA 338/13 sought to implead them as plaintiff's 3 and 4 and to make consequential and other amendments is dismissed. No appeal is preferred by the said petitioners as per record.

7.The written statement filed by the 1st defendant is adopted by the defendants No.2,4,5 and 7.

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8.Considering the rival pleadings of both the parties, the following issues have been settled for trial.

1. Whether the Plaint A-schedule property belongs to one

K.Apparao or defendant?

2. Whether the plaintiffs are lawful possession and enjoyment of the plaint B-schedule property?

3. Whether the plaintiffs are entitled for permanent injunction as prayed for?

4. To what relief?

9. On perusal of pleadings and evidence on behalf of both sides, I feel just and proper to frame the following issue.

Whether the 2nd plaintiff is necessary party to the suit?

10.ISSUE No.1:

Both plaintiffs and defendants 1,2,4,5 and 7 claimed that plaint A-schedule property belong to them. My learned predecessor framed this issue. The prayer of the plaintiff is only for permanent injunction against the defendant for B-schedule property. It is not a suit for declaration of title. Defendants not filed any Counter Claim. Therefore, I humbly believe that it is not justifiable to decide whether plaint schedule property belongs to one K.Apparao or defendant or plaintiff. Accordingly, this issue is answered.

11. Addl. ISSUE No.1:

Plaintiff No.2 is not a owner of either plaint A or B-schedule properties. According to the version of the plaintiffs the 1st plaintiff is only the absolute owner of plaint A-schedule and 7

B-schedule and after the demise of her husband, her sister and 2nd plaintiff, who is the husband of her sister and their children have been living in her house i.e. plaint A-schedule property.

Therefore, plaintiff No.2 is not a necessary party to the suit as per my opinion.

12.ISSUE No.2:

Plaintiffs counsel argued that the evidence of PWs.1 to 3 coupled with Exs.A1 to A4 proved their case that plaint

B-schedule property belongs to plaintiff and they are in possession and enjoyment of the same and therefore, they are entitled for permanent injunction as prayed for against defendants. Ex.A1 is the registered sale deed, dated 1-1-1975,

Ex.A2 is the plan, dated 14-7-2005, Ex.A3 is the proceedings issued by the VMC, dated 14-7-2005 and Ex.A4 is the notice issued b the VMC to defendants No. 1 to 8, dated 19-3-2005.

13.On the other hand the learned counsel for the defendant submitted that the evidence of DW1 to 3 coupled with

Exs.B1 to B10 and Exs.C1 disproved the plaintiffs case and established their version that plaint A&B schedule property belongs to them as legal heirs of K.Apparao and thus the suit may be dismissed with costs.

14.It is a suit for relief of permanent injunction against D1 to D8 for not interfering with the possession and enjoyment of plaintiffs in B-schedule property. Therefore this court has to decide whether the 1st plaintiff is in legal possession and 8 enjoyment of the plaint schedule property at the time of filing the suit. Because it is a suit for injunction, the plaintiff has to approach the court with clean hands to get equitable relief of injunction.

15.In order to prove his case the plaintiffs mainly depend upon Ex.A1. I perused Ex.A1 carefully. Ex.A1 is the registered sale deed, dated 1-1-1975 executed by Smt. Manga

Yellayyamma and others. It is recited in Ex.A1 that schedule property is a tiled house contains one big room, small room and one kitchen room. There is no recital in Ex.A1 in respect of vacant site i.e. plaint B-schedule property. Ex.A1 only contains the measurements of 4 corners. There is no averment in Ex.A1 about total extent of land. So Ex.A1 is not helpful to the plaint to establish that the plaintiff got title over plaint B-schedule property. The plaintiff also relied upon Ex.A2 in support of her plea in this aspect. Ex.A2 is the plan, dated 14-7-2005 issued by

Municipal Corporation of Visakhapatnam. Ex.A2 only contains the permission given by the Municipal Corporation,

Visakhapatnam to construct 1st floor in plaint A-schedule.

Plaintiff also relied upon Ex.A3 and A4 in order to establish her case. I also examined Ex.A3 and A4 carefully. Ex.A3 is permission sanctioned by the Municipal Corporation to construct residential house in plaint A-schedule property. Ex.A4 is the notice issued by the Visakhapatnam Municipal Corporation to defendants requesting their presence at the time of their arrival on 23-03-2005 at 9 A.M. to show the boundaries in T.S.No.877, 9

Block No.30, Ward No.15 with door No.31-6-13 as per request application filed by the plaintiff. So it is clear Exs.A2 to A4 also only pertaining to plaint A-schedule property but not plaint B- schedule property.

16.According to plaint averments the total extent of plaint

A-schedule property is 60 cents but in suit A-schedule the total extent of A-schedule property is mentioned as 83 sq. mts with ink pen. In Ex.A1, only measurement of land is given and total extent is not given. So there is a clear variation in respect of total extent of plaint A-schedule property between averments of plaint, plaint A-schedule and Ex.A1.

17. Coming to the boundaries of plaint A-schedule property it is recited in the

A-schedule filed along with the plaint as

East : Municipal Road South : Tiled house of Konada Venkata Swamy West : Property belonging to Koragangi Appa Rao North : Municipal Road

It is recited in the B-schedule filed along with the plaint as

East : Municipal Road and Municipal lane South : Konada Venkata Swamy Reddy's tiled house West : Koraganji Appa Rao's thatched house some part of the plaintiff's vendors tiled house and Konada Ramaswamy's tiled house. North : Municipal Road

So it is important to note here that as per the case of the plaintiffs the disputed property i.e. plaint B-schedule vacant land is situated to the Eastern of the plaintiff's building i.e. plaint

A-schedule property. If it is true plaint A-schedule and Ex.A1 10 must contain that Eastern boundary is plaint B-schedule property i.e. vacant site in question. In B-schedule of suit western boundary is mentioned as house belongs to K.V.S.Reddy but it is the case of the plaintiff that Western boundary of B-schedule i.e.

vacant site is plaintiff's building i.e. suit A-schedule property. So the version of the plaintiff is inconsistent and self contradictory in respect of crucial aspect of eastern boundary to plaint A- schedule and western boundary to plaint B-schedule.

18.In this case Advocate Commissioner was appointed by my predecessor for the purpose to measure the A-schedule property and noting down the physical features of the said by a licensed surveyor of the Municipal Corporation or other institute.

Accordingly, Commissioner visited the plaint A-schedule property on 24-07-2010 and executed warrant in the presence of parties and their respective counsels with the help of Municipal

Corporation Surveyor and filed the warrant and plan. No party examined him as witness. Because Commissioner only measured plaint A-schedule property and no relief is prayed either by plaintiff or defendants in respect of plaint A-schedule property, I believe, that Commissioner Report is not at all helpful to decide the issue in question.

19.PW1 reiterated all the averments of the plaint. PW2 in chief evidence affidavit is nothing but replica of chief evidence affidavit. PW1 even don't know the extent of the property purchased by her as seen from her evidence. She stated in the 11 cross examination that total extent of the land purchased by her is 100 sq. yards but according to plaint averments it is 60 cents.

20.PW2 is no other than the brother-in-law of the 1st plaintiff and he is 2nd plaintiff also. Pws.1 and 2 evidence scattered in the cross examination as per my view certainly PW2 is interested witness.

21.PW3 deposed that he is one of the tenant to 1st plaintiff in the plaint schedule property since 2005. He stated in the cross examination that “he don't know from whom the plaintiff purchased the schedule property and he don't know its extent”. He could not say the rent paying by him. He admitted that there is no written agreement between him and the 1st plaintiff. He stated that he don't have ration card and voter identity card. The cross examination of him raises reasonable doubt about the fact that he is a tenant to 1st plaintiff building since 2005 and it also indicates that he is a planted witness.

22.DW1 reiterated all the contents of the written statement. DW1 examined one Viginagiri Kameswara Rao as

DW2. He deposed that he is residing in the defendant's house as a tenant since 2004 till today. He failed to state his owner's name out of 8 defendants. He also failed to file any piece of paper to show that he is residing in the property in dispute as tenant since 2005. So it can also be presumed that he is also interested witness towards defendants. The defendants got examined one E.V.Srinivasa Rao, who is the Tax Inspector of 12

GVMC as CW1 and got marked attested xerox copy of property tax assessment registrar as Ex.C1 pertaining to assessment

No.264552 of Konada Apparao and Assessment No.26456 of

Koranganji Apparao, D.No.31-6-15 and 31-6-13 respectively.

He was cross examined by the defendant's counsel. I perused

Exs.B1 to B10 and C1 carefully. Ex.B1 is registered gift deed,

dated 20-8-1928, Ex.B2 is the link document, dated 17-10-1951,

Ex.B3 is the sale deed, dated 19-08-1949, Ex.B4 is the Survey

Register, dated 12-07-1972, Ex.B5 is the office copy of the complaint, dated 18-5-2005, Ex.B6 is the office copy of complaint, dated 16-8-2005, Ex.B7 is the receipt from SHO,

dated 5-6-2005, Ex.B8 is the certified copy of registered

document No.789 of 1949, Ex.B9 is the certified copy of registered sale deed No.11355 of 1982 and Ex.B10 is the certified copy of advance charge sheet containing the D.No.

31-6-13. I do not understand for what purpose Ex.B1, B1 to B10 and C1 marked. I am of the considered opinion that Exs.B1, B3 to B10 are not relevant documents to decide the issue in question. Ex.B2 is the only Link document to Ex.A1. Ex.B2 is filed by the defendant to establish the extent of A-schedule property as 50 cents but not 60 cents.

23.It is well settled law that permanent injunction is only against person om but not against rem when the case of the plaintiffs that 1st plaintiff is only the absolute owner of the plaint schedule properties and 2nd plaintiff is not the owner of the same and admittedly the 1st plaintiff died, this suit became infructuous and enable to be dismissed for the said sole ground. Therefore, 13 in fact there is no need to discuss other points raised by the plaintiff and defendant in their arguments as per my considered view.

24.Plaintiff and defendant adduced oral or documentary evidence in order to prove that they are the owners of the plaint

A-schedule property. I believe that the evidence of PWs. 1 to 3,

Exs.A1 to A4 and DWs. 1,2, CW1 and Exs.B1 to B10 and Ex.C1 not at all helpful to establish that they are the owners of the plaint B-schedule property. As already discussed earlier it is immaterial to the court to decide Who is the absolute owner of the plaint A-schedule property. Both parties unnecessarily adduced evidence and filed number of documents as if it is a suit for declaration of title for plaint A and B schedule properties.

25.According to the plaintiff's case 1st plaintiff purchased the A & B schedule property in the year 1975 from one Manga

Yellayyamma and other. But she did not filed link document or any scrap of paper to show that her vendor got title possession and enjoyment of the plaint schedule property.

26.In view of the above, I believe that the plaintiffs not approached the court with clean hands to get equitable relief of permanent injunction and that they failed to prove that they are in lawful possession and enjoyment of the plaint B-schedule property. Accordingly, this issue is answered.

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27.ISSUE No.3:In view of my findings in Issue No.1 & 2

I hold that the plaintiff is not entitled for permanent injunction as prayed for. Accordingly, this issue is answered.

28.ISSUE No.4:In view of my findings in Issue Nos. 1 to 3, this suit is liable to be dismissed without costs.

29.In the result, the suit is dismissed. In the circumstances no costs.

Dictated to the Personal Assistant transcribed by her corrected and

pronounced by me in open court, this the 28th day of February, 2014.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

NO.OF WITNESS EXAMINIED ON BEHALF OF

PLAINTIFFS:

P.W.1 : Anaparthi Nookaratnam

P.W.2 : Ganireddi Apparao

P.W.3 : Kondabathula Sai Ram

DEFENDANTS:

D.W.1 : Konada Kamakshi

D.W.2 : Viginagiri Kameswara Rao

C.W.1 : E.V.Srinivasa Rao, Tax Inspector, GVMC, VSP.

DOCUMENTS MARKED ON BEHALF OF

PLAINTIFFS:

Ex.A1 is the registered sale deed, dated 1-1-1975

Ex.A2 is the plan, dated 14-7-2005 15

Ex.A3 is the proceedings issued by the VMC, dated 14-7-2005

Ex.A4 is the notice issued b the VMC to defendants No. 1 to 8,

dated 19-3-2005.

DEFENDANTS:

Ex.B1 is registered gift deed, dated 20-8-1928

Ex.B2 is the link document, dated 17-10-1951

Ex.B3 is the sale deed, dated 19-08-1949

Ex.B4 is the Survey Register, dated 12-07-1972

Ex.B5 is the office copy of the complaint, dated 18-5-2005

Ex.B6 is the office copy of complaint, dated 16-8-2005

Ex.B7 is the receipt from SHO, dated 5-6-2005

Ex.B8 is the certified copy of registered document No.789/1949

Ex.B9 is the certified copy of registered sale deed No.11355/1982

Ex.B10 is the certified copy of advance charge sheet containing the D.No. 31-6-13.

Ex.C1 is the attested xerox copy of property Tax Assessment Register.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

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IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE

AT VISAKHAPATNAM

PRESENT: Sri.S.V.Nelson Raju, B.A., B.L.,

PRINCIPAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM.

Thursday, The 14th day of February, 2014

E.P.76/2013 in A.A.34/2010

Between:

Shriram City Union Finance Ltd., I Town Branch, rep. by its Authorized Regional Manager cum GPA holder Sri Umesh Chandra, S/o Raj Dev, Hindu, aged 42 years, r/t. Visakhapatnam.

... Petitioner/ D.Hr.

And

1. Dhulipudi Venkata Lakshmi, W/o Srinivasa Rao, Hindu, aged about 43 years, D.No.3-385, Adarsa Nagar, Old Dairy farm, Visakhapatnam.

2. P.Venkata Rao, S/o Lakshmayya, Hindu, aged about 43 years, D.No.MIG-1-B/17, HB Colony, PM Palem, Visakhapatnam.

3. Dhulipudi Srinivasa Rao, S/o Venkata Rao, Hindu, aged about 47 years, D.No. 3-385, Adarsa Nagar, Old Dairy farm, Visakhapatnam.

… Respondents / J.Drs.

This Execution petition is coming on 06-02-2014 for final hearing before me in the presence of Sri P.Krupavaram, Advocate

for Petitioner/ D.Hr., and of Sri Chavali Shyam Sundar, Advocate

for 2nd Respondent/ J.Dr.2 and after hearing both sides and having stood over till this day for consideration, this court delivered the following:

ORDER

1. This petition is filed under Order XXI Rule 48 of CPC sought to attach the monthly salary of J.Dr.2 for realization of the

Award amount.

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2.The brief averments of the petition affidavit is as follows:

It is stated that petitioner/ D.Hr. filed a claim petition

before the sole arbitrator for recovery of due under a loan

transaction. The Hon'ble Sole Arbitrator passed an award in favour of the D.Hr. company, after obtaining the Award, the D.Hr.

company demand the J.Drs. to pay the award amount with interest and costs, but the J.Drs. did not pay any amount towards satisfaction of the award. The D.Hr. company filed this EP for recovery of award amount. The 2nd J.Dr. working a a Govt.

employee and having sufficient means to pay the award amount but the 2nd J.Dr. intentionally avoiding to pay the award amounts.

J.Drs. borrowed several amounts from several persons, unless the

Hon'ble court order attachment of salary of the 2nd J.Dr. for

realization of the EP amount, the D.Hr. company put to irreparable loss. Hence, this petition.

3.The respondent filed counter by denying main averments of the petition as here under:

Admitted facts are the petitioner filed A.A. 34/2010 before

Sole Arbitrator and award passed in favour of the petitioner against the respondents/J.Drs.1,3 including this respondent directing them to pay Rs.72,160/- with interest and costs and that no previous E.P. is filed against the respondents and that the respondents not paid any amount of the award amount and that the respondents not preferred any appeal against the said award in the A.A.34/2010.

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4.No oral and documentary evidence adduced by both the parties.

5.The point for determination is:

Whether the salary of J.Dr.2 is liable to be attached for realization of the award amount or not?

6. Point:This petition is filed against 2nd respondent/ J.Dr.2 and this respondent is the guarantor. Admittedly 1st respondent/

J.Dr. is the principal debtor and 3rd respondent is the wife. It is the prime contention of the 2ndrespondent that the 1st respondent, who is the principal borrower is doing money lending business and earning money and 3rd respondent is working as Accountant in M/s.Ramesh & Co. Engineering

Company and that the 1st respondent also doing chit business and money lending and thus they are having sufficient means to pay the decretal amount. Petitioner/ D.Hr. colluded with the 1st and 3rd respondents and filed this petition against this respondent to have wrongful gain.

7.The contention of the respondent may be genuine on humanitarian grounds but there is no law that the D.Hr. must proceed against the principal debtor only first and if D.Hr. fails to secure decree amount from the principal debtor then only he has to proceed against guarantors. It is a well settled law that the

D.Hr. must proceed against all the respondents or J.Drs. or 4 against principal debtor or against any of the J.Drs. So the plea of this respondent/ J.Dr.2 is not acceptable as per law.

8.It is the further version of the respondent/J.Dr.2 that his salary is under court attachment and his four family members are depending upon him and his salary, is not sufficient to meet family maintenance and to meet educational installments for his personal loans. The garnishee of J.Dr.2 filed salary slip of the respondent/J.Dr. for the 27-12-2013. I perused carefully. It does not contain that his salary is deducted for court attachment.

Therefore, it can be conclude that this respondent not speaking true in respect of his salary that his salary is under court attachment now. His salary slip reveals that his gross earnings is

Rs.27,710/- and he received net salary of Rs.13,366/-. Thus, the salary of the respondent is liable to be attached subject to sec.

60 CPC for the satisfaction of the award amount passed by sole arbitrator. Thus, the said contention of the respondent/ J.Dr.2 is not helpful to his case.

9.In view of the above I believe, it is a fit case to allow the petition. The court also received the salary particulars of

J.Dr.2. The salary slip of J.Dr.2 filed along with counter, dated 27-3-2013 is contrary to the salary slip sent by the garnishee official dated 27-12-2013 officially. The salary slip of J.Dr.2 filed along with counter does not contain the signature of the garnishee. Therefore it can be treated as old or invalid or created 5 document. The respondent/ J.Dr.2 also failed to enter into witness box to speak his case on oath. Therefore, it is not justified to rely on the salary slip filed by the respondent with counter.

10.In the result, the petition is allowed. Issue Order XXI

Rule 48 CPC warrant against the salary of J.Dr. 2 subject to section 60 CPC to the garnishee of the respondent/J.Dr.2 on payment of process.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court, this the 14th day of February, 2014.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

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IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL JUDGE

AT VISAKHAPATNAM

Present: Sri. S.V. Nelson Raju, VII Additional Senior Civil Judge Visakhapatnam

Tuesday, this the 18th day of November, 2014

O.S.9/2012

Between:

Sri Gompa Srinivasa Rao, S/o Krishna Rao, Hindu,Aged 28 years, R/at D.No.44-17-22, Tatichetlapalem, Visakhapatnam. … Plaintiff. And:

1. Sri. G. Srinu ( Surname and Son of not known to the Plaintiff), Hindu, Aged 35 years, R/o Qr.No.770/A, MSM Colony, Gyanapuram, Visakhapatnam.

2. Smt. G. Lakshmi, W/o Srinu, Hindu, Aged 31 years, Rest -do-.

... Defendants.

This suit coming on 13-11-2014 for final hearing before me in the presence of Sri K.V. Jagadeswara Reddy, Advocate for the plaintiff and of the defendants 1 and 2 are having remained ex-parte and having stood over till this day for consideration and this Court delivered the following:

J U D G M E N T

1.The plaintiff filed the suit against the defendants for recover of suit amount of

Rs.1,61,300/- with costs and further interest based on promissory note.

2. The brief facts of the plaint are as follows:

The defendants jointly borrowed an amount of Rs.1,00,000/- from the plaintiff on 10-06-2009 for the purpose of their family necessities and clear sundry debts and jointly executed a demand promissory note by the defendants agreeing to repay the same with interest @ 24% per annum to the plaintiff. In spite of repeated demands made by the plaintiff, the defendants failed to pay the amount to the plaintiff either towards principal or interest. The defendants are not an agriculturists and as such they are not entitled for 2 any relief under Act IV of 1938 and also under Act VII of 1977 debt Relief Act. Hence, this suit.

3. Now the points for consideration are:

1.Whether the plaintiff is entitled for recovery of the suit amount from the defendants?

2.To what relief

4.Heard counsel for plaintiff.

5.Defendants were remainds exparte.

6.In order to substantiate his case, the plaintiff himself examined as P.W.1 and got marked exhibit Ex.A1 Promissory Note for Rs.1,00,000/-, dated 10-06-2009.

7. POINT NO.1

The unchallenged evidence of P.W.1 coupled with Ex.A1 promissory note proves that the defendants borrowed an amount of Rs.1,00,000/- from the plaintiff and executed

Ex.A1 promissory note on 10-06-2009. The unchallenged evidence of PW.1 and Ex.A1 further proves that inspite of repeated demands made by the plaintiff, the defendants failed to repay any amount either principal or interest to the plaintiff covered under Ex.A1. Therefore, the plaintiff proved the suit claim.

POINT 8. NO.2:

In the result, the suit is decreed with costs for Rs.1,61,300/- (Rupees One lakh Sixty

One thousand and Three hundred only) with subsequent interest @ 12% per annum from the date of suit, till the date of decree and thereafter @ 6% per annum from the date of decree, till the date of realization on the principal amount of Rs.1,00,000/- (Rupees One Lakh only).

Typed to my dictation, corrected and pronounced by me in open Court this the 18th day of November, 2014.

VII Addl. Senior Civil Judge Visakhapatnam. Appendix of evidence No. of witnesses examined for Plaintiff:Defendant: P.W.1 : Gompa Srinivasa Rao None

No. of documents marked for Plaintiff: Ex.A.1/10-06-2009Promissory note

Defendant: NIL

VII ASCJ, VSP.

Date of presentation: 02-01-2012 Date of filing: 02-01-2012

IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL JUDGE

AT VISAKHAPATNAM

Present: Sri. S.V. Nelson Raju, VII Additional Senior Civil Judge Visakhapatnam

Tuesday, this the 18th day of November, 2014

O.S.9/2012

Between:

Sri Gompa Srinivasa Rao, S/o Krishna Rao, Hindu,Aged 28 years, R/at D.No.44-17-22, Tatichetlapalem, Visakhapatnam. … Plaintiff. And:

1. Sri. G. Srinu ( Surname and Son of not known to the Plaintiff), Hindu, Aged 35 years, R/o Qr.No.770/A, MSM Colony, Gyanapuram, Visakhapatnam.

2. Smt. G. Lakshmi, W/o Srinu, Hindu, Aged 31 years, Rest -do-.

... Defendants.

Suit filed by the plaintiff against defendant for recovery of the suit amount of Rs.1,61,300/- being the principal and interest due on a promissory note for

Rs.1,00,000/-, dated 10-06-2009 executed by the defendant agreeing to repay the same with interest at the rate of 24% per annum from the date of the suit till the date of realization and for costs of the suit.

The value of the suit for the purpose of court fee and jurisdiction is

Rs.1,61,300/- and a Court fee of Rs.4,126/- is paid under Sec.20 Sec. 1 Art.1 (b) & (c ) of A.P.C.F and S.V Act.

This suit coming on 13-11-2014 for final hearing before me in the presence of Sri K.V. Jagadeswara Reddy, Advocate for the plaintiff and of the defendants 1 and 2 are having remained ex-parte and having stood over till this day for consideration and this Court made doth order and

D E C R E E

1. that the suit be and the same is hereby decreed with costs ;

2.that the defendant do pay to the plaintiff a sum of Rs. 1,61,300/- (Rupees One lakh Sixty One thousand and Three hundred only) with subsequent interest @ 12% per annum from the date of suit, till the date of decree and thereafter @ 6% per annum from the date of decree, till the date of realization on Rs.1,00,000/- (Rupees One Lakh only).

3. that the defendant do also pay to the plaintiff a sum of Rs 7,498 /- towards costs of the suit.

Given under my hand and the Lack of Seal of this Court, this the 18th day of November, 2014.

VII Addl. Senior Civil Judge, Visakhapatnam.

Memorandum of costs

FOR PLAINTIFF: FOR DEFENDANT:

Stamps on VakalatRs.2-00 -No costs memo filed- Stamps on PlaintRs.4,126-00 Process FeeRs.00-00 Advocate FeeRs.3,270-00 Junior Advocate FeeRs.0-00 Typing ChargesRs.100-00 Costs Allowed :7,498-00

VII ASCJ, VSP

1

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE

AT VISAKHAPATNAM.

PRESENT: Sri.S.V.Nelson Raju, B.A., B.L.,

PRINCIPAL JUNIOR CIVIL JUDGE

VISAKHAPATNAM.

Tuesday, The 4th day of March, 2014

E.P.24/2013 in A.A.712/2009

Between: Shriram City Union Finance Ltd., NAD Branch, rep. by its Authorized Divisional Executive Sri K.RR.Prakash, S/o Venkata Rao, Hindu, aged 36 years, r/t. Visakhapatnam.

... Petitioner/ D.Hr.

And

Garbhopu Vijay Kumar, S/o Rayappa Joseph Naidu, Hindu, aged 55 years, R/o at D.No.10-11-3, Ramnagar, Opp.Indira Vidyalayam, Visakhapatnam. … Respondent / J.Dr.

This Execution petition is coming on 28-02-2014 for final hearing before me in the presence of Sri A.Venkateswara Rao, Advocate for Petitioner/ D.Hr., and of Sri J.A.Naidu, Advocate for Respondent/ J.Dr. and after hearing both sides and having stood over till this day for consideration, this court delivered the following:

ORDER

1. This petition is filed under Order XXI Rule 48 of CPC sought to attach the monthly salary of J.Dr. for realization of the

Award amount.

2.The brief averments of the petition affidavit is as follows:

It is stated that petitioner/ D.Hr. filed a claim petition

before the sole arbitrator for recovery of due under a loan

transaction. The Hon'ble Sole Arbitrator passed an award in favour of the D.Hr. company, after obtaining the Award, the D.Hr.

company demand the J.Dr. to pay the award amount with interest 2 and costs, but the J.Dr. did not pay any amount towards satisfaction of the award. The D.Hr. company filed this Execution

Petition for recovery of award amount. The J.Dr. working in Port

Trust, Visakhapatnam and he is drawing an amount of

Rs.20,000/- as a salary and having sufficient means to pay the award amount but the J.Dr. intentionally avoiding to pay the award amount. Unless the Hon'ble court order for attachment salary of J.Dr. for realization of the EP amount, the D.Hr. company put to irreparable loss. Hence, this petition.

3.The respondent filed counter by denying main averments of the petition as here under:

The J.Dr. did not received any notice prior to receiving the notice in this E.P. and he did not borrowed any amount, and even inspite of repeated demands made by him the J.Dr. did not pay any amount are all false and the E.P. is not maintainable and liable to be dismissed with exemplary costs.

4.No oral and documentary evidence adduced by both the parties.

5.The point for determination is:

Whether the salary of J.Dr. is liable to be attached for realization of the award amount or not?

6. Point:

The admitted facts are the plaintiff company filed

A.A.712/2009 before sole arbitrator and award is passed in favour 3 of D.Hr. for an amount of Rs.20,339/- with costs and further interest. It is also not in dispute that the defendant/ J.Dr. not paid any decretal amount to the D.Hr. so far.

7.The first contention of the petitioner is that he did not borrow any loan from the D.Hr. After enquiry award is passed and this Execution Petition is filed to realize of the decretal amount. If really the respondent did not borrow any loan from the plaintiff and if he prejudice the award passed by arbitrator, he should approach the Appellate Court but he did not prefer any appeal against the D.Hr. So it is not just and proper to take above such contention by the J.Dr.

8.It is also not in dispute that the defendant/J.Dr. not paid any decretal amount to the D.Hr. so far. It is the further contention of the J.Dr. that the D.Hr. filed this application without any notice to him seeking attachment of salary from the custody of the garnishee and thus this E.P. is not maintainable and liable to be dismissed. There is no law that the J.Dr. should issue notice

before filing the Execution Petition application. Therefore, this

version of the J.Dr. is also not sustainable.

9.It is further contended on behalf of the J.Dr. that notice issued by this court is not maintainable and this court failed to follow the mandatory provisions of CPC. The J.Dr. failed to enlighten the court that how the notice and warrant issued by the court is not maintainable under law and what are the mandatory provisions of CPC to be followed by the court before issuing 4 notice. I believe that all the contentions of the J.Dr. is only intended to drag on the payment of decree amount to the D.Hr.

for some other time.

10.It is an admitted fact that J.Dr. is working as

Quayforeman, Traffic Department, Port Trust, Visakhapatnam, his salary certificate also received from the garnishee by this court and according to salary certificate of J.Dr., his total income is

Rs.45,795/- and his deductions are Rs.17,903/-. The deductions mentioned in the salary certificate are not subject to Sec. 60 CPC.

It is not the case of the J.Dr. that the salary received from him is not sufficient to him to maintain his family and to realize the decretal amount.

11.In view of the above I hold that the petitioner/ D.Hr. is entitled to allow the petition and moiety of J.Dr. is liable to be attached.

12.In the result, the petition is allowed. Issue Order XXI

Rule 48 CPC warrant to the garnishee of J.Dr. against the salary of

J.Dr. subject to section 60 CPC on payment of process.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in the open court, this the 4th day of March, 2014.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

APPENDIX OF EVIDENCE

No oral or documentary evidence is adduced on either side.

PRINCIPAL JUNIOR CIVIL JUDGE,

VISAKHAPATNAM.

5

1

IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL JUDGE

AT VISAKHAPATNAM

PRESENT: SRI S.V.NELSON RAJU,

VII ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Monday, the 24 th day of November, 2014

ORIGINAL SUIT NO.1058/2011

Between:

Dharmana Rama Rao, S/o Sanyasi Naidu, Hindu, aged 49 years, resident of Q.No.4, Sea Sands, Andhra University, Visakhapatnam. … Plaintiff And:

Siripurapu Krishna, S/o late Ramunaidu, Hindu, aged 55 years, resident of plot No.48 and 49, Sri Ramnagar colony, Vizianagaram. … Defendant

This suit coming on 21-11-2014 for final hearing before me in the presence of Sri

S.Rajesh Babu, Advocate for the plaintiff and of the defendant is having remained ex- parte and having stood over till this day for consideration and this Court delivered the following:

J U D G M E N T

1.The plaintiff filed the suit against the defendant for recover of suit amount of

Rs.1,89,750/- with costs and further interest based on promissory note.

2. The brief facts of the plaint are as follows:

The defendant borrowed an amount of Rs.1,00,000/- from the plaintiff on 21-07- 2008 for the purpose of his development of immovable properties and executed demand promissory note agreeing to repay the same with interest @ 30% per annum to the plaintiff. Inspite of repeated demands made by the plaintiff, the defendant failed to pay any amount to the plaintiff either towards principal or interest. Hence, this suit.

3.Now the points for consideration are:

1.Whether the plaintiff is entitled for recovery of suit claim as prayed for?

2. To what relief?

4. Defendant was set ex-parte.

2

5.In order to substantiate her case, the plaintiff himself examined as P.W.1. and got marked exhibit Ex.A1 original Promissory Note, dated 21-07-2008 and Ex.A2 original cheque, dated 21-07-2008.

6. ISSUE NO.1

The unchallenged evidence of P.W.1 coupled with Ex.A1 and Ex.A2 proves that the defendant borrowed an amount of Rs.1,00,000/- from the plaintiff and executed Ex.A1 promissory notes. The unchallenged evidence of PW.1 further proves that inspite of repeated demands made by the plaintiff, the defendant failed to repay any amount either

principal or interest to the plaintiff covered under Ex.A1. Therefore, the plaintiff proved

the suit claim.

7. ISSUE NO.2:

In the result, the suit is decreed with costs for Rs.1,89,750/- (Rupees One lakh

Eighty Nine thousand Seven hundred and Fifty only) with subsequent interest @ 12% per annum from the date of suit, till the date of decree and thereafter @ 6% per annum from the date of decree, till the date of realization on the principal amount of Rs.1,00,000/- (Rupees One lakh only).

Typed to my dictation, corrected and pronounced by me in open Court this the 24th day of November, 2014.

VII Addl. Senior Civil Judge Visakhapatnam.

Appendix of evidence

No. of witnesses examined for Plaintiff:Defendant:

P.W.1: Dharmana Rama Rao -None-

No. of documents marked for

Plaintiff:

Ex.A1 is original Promissory Note, dated 21-07-2008 Ex.A2 is original cheque, dated 21-07-2008.

Defendant: NIL

VII ASCJ, VSP

Date of presentation: 19-07-2011 Date of filing: 02-08-2011

IN THE COURT OF THE VII ADDITIONAL SENIOR CIVIL JUDGE

AT VISAKHAPATNAM

PRESENT: SRI S.V.NELSON RAJU,

VII ADDITIONAL SENIOR CIVIL JUDGE,

VISAKHAPATNAM

Monday, the 24 th day of November, 2014

ORIGINAL SUIT NO.1058/2011

Between:

Dharmana Rama Rao, S/o Sanyasi Naidu, Hindu, aged 49 years, resident of Q.No.4, Sea Sands, Andhra University, Visakhapatnam. … Plaintiff

And:

Siripurapu Krishna, S/o late Ramunaidu, Hindu, aged 55 years, resident of plot No.48 and 49, Sri Ramnagar colony, Vizianagaram.

… Defendant

Suit filed by the plaintiff against defendant for recovery of the suit amount of Rs. 1,89,750/- being the principal and interest due on a promissory note for Rs.1,00,000/-, dated 21-07-2008 executed by the defendant in favour of plaintiff with subsequent interest at the rate of 24% per annum from the date of the suit till the date of realization and for costs of the suit.

The value of the suit for the purpose of court fee and jurisdiction is Rs.1,89,750/- and a Court fee of Rs.4,326/- is paid under Sec.20 Sec. 1 Art.1 (b) & (c ) of A.P.C.F and S.V Act.

This suit coming on 21-11-2014 for final hearing before me in the presence of Sri S.Rajesh Babu, Advocate for the plaintiff and of the defendant is having remained ex-parte and having stood over till this day for consideration and this Court made doth order and

D E C R E E

1. that the suit be and the same is hereby decreed ;

2.that the defendant do pay to the plaintiff a sum of Rs.1,89,750/- (Rupees

One lakh Eighty Nine thousand Seven hundred and Fifty only) with subsequent interest @ 12% per annum from the date of suit, till the date of decree and thereafter @ 6% per annum from the date of decree, till the date of realization on Rs.1,00,000/- (Rupees One lakh only).

3. that the defendant do also pay to the plaintiff a sum of Rs.4,328 /- towards

Institutional costs of the suit.

Given under my hand and the Lack of Seal of this Court, this the 24th day of November, 2014.

VII Addl. Senior Civil Judge, Visakhapatnam.

Memorandum of costs

FOR PLAINTIFF: FOR DEFENDANTS:

Stamps on VakalatRs.2-00 -No costs memo filed- Stamps on PlaintRs.4,326-00 Institutional Costs :4,328-00

VII ASCJ, VSP