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Andhra Pradesh High Court
Judges : GOPALA KRISHNAN NAIR, P.CHANDRA REDDY
Prabhakara Rao H.Mawle - Appellant
Versus
Hyderabad State Bank - Respondent
Decided On : 04-18-63
EXECUTION PROCEEDINGS - JURISDICTION - TRANSFER OF EXECUTION PROCEEDINGS - AMENDMENT OF DECREE-HOLDER'S NAME - LIMITATION - [ORDER 21, RULE 2, C. P. C. , ORDER 21, RULE 16, C. P. C. , ORDER 22, RULE 10, C. P. C. , SECTION 24, C. P. C. , SECTION 12 (1), HYDERABAD CIVIL COURTS ACT (36 OF 1954), SECTION 3, STATE BANK OF HYDERABAD ACT, 1956 (CENTRAL ACT 79 OF 1956)] - The First Additional Judge, City Civil Court had jurisdiction to entertain the execution petition as he was one of the Judges of the City Civil Court and had the same pecuniary and territorial jurisdiction as the Judge who passed the decree. The transfer of the execution proceedings to the Fourth Additional Judge was proper and valid as the Chief Judge was entitled to make the transfer by virtue of the provisions of Section 12 (1) of the Hyderabad Civil Courts Act (36 of 1954). The application of the decree-holder in the second E. P. No. 49 of 1960 for amending the decree-holder's name was rightly allowed as the change of name of the Hyderabad State Bank by Section 3 of the State Bank of Hyderabad Act, 1956 (Central Act 79 of 1956) did not affect any rights or obligations of that bank. The second E. P. No. 49 of 1960 was not barred by limitation as the previous execution petition was pending when it was filed and several orders had also been passed in the earlier execution petition within three years before the filing of the second execution petition.
Fact of the Case:
The appellant-judgment-debtor challenged the validity of execution proceedings initiated against him by the decree-holder-Bank. The appellant contended that the First Additional Judge, City Civil Court lacked jurisdiction to entertain the execution petition, the transfer of the execution proceedings to the Fourth Additional Judge was invalid, the amendment of the decree-holder's name was improper, and the second execution petition was barred by limitation.
Finding of the Court:
The Court held that the First Additional Judge had jurisdiction to entertain the execution petition as he was one of the Judges of the City Civil Court and had the same pecuniary and territorial jurisdiction as the Judge who passed the decree. The transfer of the execution proceedings to the Fourth Additional Judge was proper and valid as the Chief Judge was entitled to make the transfer by virtue of the provisions of Section 12 (1) of the Hyderabad Civil Courts Act (36 of 1954). The application of the decree-holder in the second E. P. No. 49 of 1960 for amending the decree-holder's name was rightly allowed as the change of name of the Hyderabad State Bank by Section 3 of the State Bank of Hyderabad Act, 1956 (Central Act 79 of 1956) did not affect any rights or obligations of that bank. The second E. P. No. 49 of 1960 was not barred by limitation as the previous execution petition was pending when it was filed and several orders had also been passed in the earlier execution petition within three years before the filing of the second execution petition.
Issues: 1. Whether the First Additional Judge, City Civil Court had jurisdiction to entertain the execution petition? 2. Whether the transfer of the execution proceedings to the Fourth Additional Judge was valid? 3. Whether the amendment of the decree-holder's name was proper? 4. Whether the second execution petition was barred by limitation?
Ratio Decidendi: 1. The First Additional Judge, City Civil Court had jurisdiction to entertain the execution petition as he was one of the Judges of the City Civil Court and had the same pecuniary and territorial jurisdiction as the Judge who passed the decree. 2. The transfer of the execution proceedings to the Fourth Additional Judge was proper and valid as the Chief Judge was entitled to make the transfer by virtue of the provisions of Section 12 (1) of the Hyderabad Civil Courts Act (36 of 1954). 3. The application of the decree-holder in the second E. P. No. 49 of 1960 for amending the decree-holder's name was rightly allowed as the change of name of the Hyderabad State Bank by Section 3 of the State Bank of Hyderabad Act, 1956 (Central Act 79 of 1956) did not affect any rights or obligations of that bank. 4. The second E. P. No. 49 of 1960 was not barred by limitation as the previous execution petition was pending when it was filed and several orders had also been passed in the earlier execution petition within three years before the filing of the second execution petition.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS Letters Patent Appeal is from the appellate judgment dated 19th January, 1963 of our learned brother, Munikannaiah, J. The matter relates to proceedings in execution of a money decree passed against the appellant-judgment-debtor on 9-2-1952 in 0. S. 294 of 1951 on the file of the City Civil Court, Hyderabad.
( 2 ) IT is necessary to trace briefly the history of these execution proceedings. The then Hyderabad State Bank instituted a money suit, 0. S. 294 of 1951, against the appellant and obtained a decree on 9-2-1952 for Rs. 6,377-7-9 with interest at 6% per annum from the date of decree. The Judge who passed the decree, was the Second Judge of the Hyderabad City Civil Court. The decree granted a period of six months for payment of the decretal amount. This period expired on 8-8-1952. The judgment-debtor did not pay. Therefore the decree-holder-Bank tiled execution petition No. 183/3 of 1952-53 for recovering the amount by attachment and sale of certain moveable properties of the judgment-debtor. The judgment-debtor thereupon filed an application under the Hyderabad Money Lenders Act for payment of the decree debt in monthly instalments of Rs. 100/ -. That application was dismissed on 5-12-1952, the judgment-debtor filed another application under Order 21, Rule 2 C. P. C. setting up an agreement between himself and the decree-holder for payment of the decree debt in monthly instalments of Rs. 10/- and also claiming payment of some instalments in pursuance of this agreement. MB COmplained that the instalments so paid have not been credited by the decree-holder towards the decree debt. The decree-holder Bank in its objections denied the existence of any such agreement and stated that a third person had paid certain amounts into the Bank to the account of the judgment-debtor and that the Bank was willing to give credit to the Judgment-debtor for those amounts.
( 3 ) THIS application was posted for enquiry to 7-2-1953;. but the judgment-debtor was absent on that day, and therefore, the executing Court ordered that the sum of Rs. 110/- admitted by the decree-holder be credited towards the decree and that a warrant for attachment of the moveables of the judgment-debtor he issued for the balance payable under the decree. It was further ordered that the execution petition be celled on 20-2-1953. On 9-2-1953, the judgment-debtor filed another application in the executing Court stating that he did not appear on 7-2-1953 because he was given to understand that the decree-holder would move for an adjournment and that therefore the ex parte order was passed against him on 7-2-1953 should be set aside and his application under Order 21, Rule 2, C. P. C. , enquired into and disposed of on the merits. The decree-holder did not raise any serious objection to this application, with the result that the application under Order 21, Rule 2, C. P. C. was posted for enquiry. After some adjournments, the judgment-debtor examined himself and another witness on 16-4-53 and closed the evidence on his side. The proceedings were then adjourned to 254-1953 and thereafter to 15-6-1953 for recording evidence on behalf of the decree-holder. On 15-6-1953, one witness on behalf of the decree-holder was examined. The judgment-debtor, however, refused to cross- examine the witness and asked the Court for time to move the High Court for transfer of all the proceedings pending before the particular Judge (now Kumarayya, J. ). It appears that by 29-6-1953 (the judgment-debtor had obtained a stay of proceedings from the High Court on 23-11-1953) the judgment-debtors application for transfer was dismissed by High Court. On 13-2-1954 the judgment-debtor applied to the executing Court for summoning the decree-holders witness whom he had previously declined to cross-examine. That application was rejected. The judgment-debtor thereupon preferred Appeal No. 158/1 of 1953-54 to the Hyderabad High Court against that order. In pursuance of th
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