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2018 Supreme(AP) 139
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Ramayanam Satish Kumar - Appellant
Vs.
Thamada Bhaskara Rao and another - Respondents
Second Appeal No.459 of 2017
Decided On : 03-04-2018
For the Appellant : Sri S. Subba Reddy.
For the Respondents: A.K. Kishore Reddy, T.V. Jaggi Reddy.
Headnote:
Code of Civil Procedure, 1908 - Order 21 Rules 34 and Section 64 - Second Appeal - Second Appeal is arisen out of the judgment and decree on the file of the IV Additional District Judge, against the dismissal of the claim petition on the file of the I Additional Senior Civil Judge, filed by the non-possessory unregistered sale agreement holder as claimant against the decree holder of the money decree based on a promissory note said to have been executed by the judgment debtor - Held, In view of the above and from this Courts duty in the factual matrix to render equity to both the parties and any party who received under benefit has to restore that extent to the other to order restitution with pragmatic approach for Court should not be oblivious of any unmerited hardship to be suffered by any party as held by the Apex Court in City Bank N.A, it is just to say the claimant, has to pay the original suit principal amount of the suit claim which amount includes adjustment by receiving back the amount deposited in the suit for specific performance in the Court with accrued interest to meet the same and also that includes any amount earlier paid under any settlement proposal through mediator or any direction of this Court or the Courts below - Said amount has to be paid within eight weeks from today, failing which, money decree holder is entitled to execute and recover said with interest at 12% p.a. from today onwards for balance after adjustment of what is stated supra - For any further claim of the money decree holder, is to proceed personally against respondent No.2/judgment debtor, if there is any other property of her for the reason Section 56 C.P.C., speaks a female is not liable for arrest for any recovery of a money decree - Appeal allowed. (Para 33)
This Second Appeal is arisen out of the judgment and decree dated 31.03.2017 in A.S.No.129 of 2013 on the file of the IV Additional District Judge, Kakinada, against the dismissal of the claim petition in E.A.No.245 of 2012 in E.P.No.115 of 2011 in O.S.No.498 of 2010 on the file of the I Additional Senior Civil Judge, Kakinada filed by the non-possessory unregistered sale agreement holder as claimant by name, Ramayanam Satish Kumar against the decree holder by name, Thamada Bhaskara Rao of the money decree based on a promissory note said to have been executed by the judgment debtor by name, Smt. Pilla Supraja.
2. Heard both sides.
3. The parties herein are being referred with their names, to avoid confusion and for more clarity.
4. The facts in brief for the purpose of second appeal are that P. Supraja said to have been entered non-possessory unregistered contract for sale (agreement of sale) on 28.02.2010 for Rs.2,000/- per square yard for 161.16 square yards covered by Sy.No.290/2 of Ramanaiahpeta of Kakinada Rural Mandal within the Kakinada Municipal Corporation limits, which is a vacant house site surrounded by houses. The agreement holder, R. Satish Kumar entered the agreement having paid Rs.2,00,000/- as advance and maintained the suit in O.S.No.40 of 2012 renumbered as 255 of 2012 before the II Additional Senior Civil Judge, Kakinada. Undisputedly, T. Bhaskara Rao, who stated, lent the amount under promissory note dated 08.09.2008, was not made a party to the specific performance suit maintained by R. Satish Kumar against P. Supraja supra.
5. The said T. Bhaskara Rao, who maintained suit for recovery of the said amount based on a promissory note so called lending of Rs.6,00,000/- with interest at Rs.2/- p.a., maintained the suit claim in O.S.No.498 of 2010 for Rs.8,82,000/- or so. It is, at the time of filing of the suit for recovery of the amount sought for attachment before judgment in I.A.No.617 of 2010 ordered on 08.09.2010 and affected on 20.09.2010. Even in the money suit of T. Bhaskara Rao against P. Supraja and R. Satish Kumar, prior agreement holder thereunder made a party. The fact further remains from the above also clear that the suit for specific performance is subsequent to the date of suit for recovery of money and attachment before judgment. So far as the non-possessory sale agreement concerned, it is difficult to presume any notice including deemed notice contemplated by Section 3 of the Transfer of Property Act but for so far as the attachment before judgment since affected before the date of filing of the suit for specific performance it can be taken as a deemed notice.
6. From this, the ex parte money decree was granted against P. Supraja in favour of T. Bhaskara Rao vide decree and judgment and practically with no lapse of time, since, it was an ex parte decree and consequently, the money decree holder, T. Bhaskara Rao filed E.P.No.115 of 2011 for execution of the decree in O.S.No.498 of 2010. During pendency of the execution proceedings in E.P.No.115 of 2011, based on the subsequent suit for specific performance in O.S.No.40 of 2012 preceded by notice issued by R. Satish Kumar against P. Supraja from her contentions of the reply to the notice, from the suit filed, filed the claim petition in the year 2012 based on that unregistered non-possessory sale agreement dated 28.02.2010, as referred supra, even though, the suit is, few days or months, filed prior to the claim petition in E.A.No.245 of 2012; even later in the suit, the money decree holder, T. Bhaskara Rao is not impleaded as co-defendant. However, the suit O.S.No.40 of 2012=O.S.No.255 of 2012 for specific performance of the contract for sale was decreed on 01.05.2014.
7. It is, in the meantime, the claim petition in E.A.No.245 of 2012 tried as a suit by the procedure contemplated for deemed decree to be passed, was disposed of by the learned I Additional Senior Civil Judge, Kakinada, on 23.04.2013. It is made clear there from that by the
