1978 Supreme(AP) 348

Andhra Pradesh High Court
Judges : T.NARSINGA RAO
UPPALAPATI VENKATA RATNAM - Appellant
Versus
MEKA VENKATA SRAVANTHI DEVIS - Respondent
Decided On : 10-28-78

The provisions of Or. 38, Rule 5 C. P. C. with regard to the Judgment-debtor being called upon to furnish security can reasonably be read into the provisions of Or,21, Rule 42 C. P. C. Particularly so, where the judgment-debtor puts in his appearance.

Headnote:

ATTACHMENT - DECREE - EXECUTION - JURISDICTION - ORDER OF ATTACHMENT - SECURITY - STAY OF EXECUTION - TRANSFER OF DECREE - [OR. 21, R. 42, 53; OR. 38, R. 5, 6; S. 42, C. P. C.]

Fact of the Case:

The revision petitioner filed O. S. 6/1972 for specific performance of an agreement of sale entered into by the parents of the respondents. The Supreme Court held that the price paid by the petitioner together with interest should be refunded by the parents of the respondents. The respondents, who were then minors, having attained majority since then, are also made liable for payment of the value of the improvements made by the petitioner. The decree with regard to the refund of the amount was got transferred to the Sub-Court, Vijayawada and the revision petitioner filed E. P. 181/75 and got a sum of Rs. 28,000/- and odd lying in the Andhra Bank to the credit of the parents of the respondents attached. The amount was brought to the Court on 24-10-1978 on cheque petition filed by the revision petitioner which was ordered. The two respondents herein laid O. S. No. 533/1972 for possession of the very suit lands and for mesne profits. The suit to the extent of possession was decreed and the mesne profits were ordered to be ascertained by way of separate application. Aggrieved by this judgment and decree obtained by the respondents herein against the petitioner, the latter filed an appeal to this Court. An interim stay of execution was obtained, but was vacated on 16-6-78. As against that order, a Letters Patents Appeal was preferred by the revision petitioner herein. The Division Bench allowed the appeal. The operative portion in the Letters Patent Appeal reads as follows:"having considered the subject from the stand point of balance of convenience and justice, we make the interim stay granted in C. M. P. No. 4223/1978 on 7-4-1978 be made absolute. In that view the appeal is allowed. The appellant is directed to deposit the costs within two months from the-dav and on making the deposit, the respondents are entitled to withdraw the amount without any security. After the mesne profits are quantified and ascertained, the respondents may make application in this Court before the single Judge for further directions in that regard". This order in the Letters Patent Appeal was passed on 27. 1978.

Finding of the Court:

1. The order of attachment passed in E. P. No. 290/1978 by the Subordinate Judge is not without jurisdiction or that the respondent ought to have sought directions only from the High Court in view of the stay granted by it. 2. The provisions of Or. 38, Rule 5 C. P. C. with regard to the Judgment-debtor being called upon to furnish security can reasonably be read into the provisions of Or,21, Rule 42 C. P. C. Particularly so, where the judgment-debtor puts in his appearance. 3. The decree passed in O. S. 6/1972 was passed by the District court at Machilipatnam and that it was only transferred to the Court of the subordinate Judge at Vijayawada for execution at the instance of the revision petitioner and the same could not have been got attached by the respondents without a notice being sent to the District Court, as contemplated by or. 21, Rule 53 C. P. C. is not valid.

Issues: 1. Whether the order of attachment passed in E. P. No. 290/1978 by the Subordinate Judge is without jurisdiction? 2. Whether the provisions of Or. 38, Rule 5 C. P. C. with regard to the Judgment-debtor being called upon to furnish security can be read into the provisions of Or,21, Rule 42 C. P. C.? 3. Whether the decree passed in O. S. 6/1972 was passed by the District court at Machilipatnam and that it was only transferred to the Court of the subordinate Judge at Vijayawada for execution at the instance of the revision petitioner and the same could not have been got attached by the respondents without a notice being sent to the District Court, as contemplated by or. 21, Rule 53 C. P. C. is valid?

Ratio Decidendi: 1. The exercise of the powers of the Court under Or 21, Rule 42, c. P. C. by the Subordinate Judge can in no way be said to be inconsistant with the stay order may by the High Court. 2. The attachment of the decree ordered in E. P. No. 291/1978 is equally valid. 3. The absence of a notice to the Court which passed the decree does not render the execution proceeding invalid.

Final Decision: C. R. P. 5726 dismissed and C. R. P. 6725 allowed.