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ANDHRA PRADESH HIGH COURT AT AMARAVATHI
Lalitha Kanneganti, J.
K. Subashini - Appellant
Versus
Margadarsi Chit Fund Limited & Ors. - Respondents
Civil Revision Petition No. 4159 of 2016
Decided On : 25-06-2021
CIVIL PROCEDURE CODE - SECTION 47 - EXECUTION OF DECREE - SATISFACTION OF DECREE - PART PAYMENT - ORAL AGREEMENT - COURT'S JURISDICTION - AUCTION SALE - VALIDITY - CIVIL REVISION PETITION - MAINTAINABILITY.
Fact of the Case:
The petitioner, a judgment debtor, entered into an oral agreement with the decree holder to settle the decree amount for a lesser sum. Part payments were made, and the decree holder acknowledged the balance amount. However, the decree holder later demanded a higher amount, and the petitioner deposited the balance amount in court. The executing court dismissed the petitioner's application under Section 47 CPC to dismiss the execution petition, and the petitioner filed a civil revision petition.
Finding of the Court:
The court held that the executing court failed to exercise its jurisdiction under Section 47 CPC by not deciding the application filed by the petitioner and proceeding further by conducting an auction sale. The court observed that the decree holder had filed a memo about part satisfaction and that the petitioner had paid the entire amount as per the oral agreement before the sale was conducted. The court held that the auction sale was impermissible and set aside the order of the executing court.
Issues: 1. Whether the executing court acted within the parameters of Section 47 CPC? 2. Whether the order passed by the court below is liable to be set aside?
Ratio Decidendi: 1. Section 47 CPC gives jurisdiction and power to the executing court to decide all questions relating to execution, discharge, and satisfaction of the decree. 2. The executing court failed to consider the crucial aspect of the decree holder's memo about receiving part payment and the issuance of a letter confirming the balance amount. 3. The requirement of a certificate under Order XXI Rule 2(2) CPC pales into insignificance when the decree holder himself files a memo with regard to part payment. 4. The executing court is bound to decide first whether the decree passed is executable or not in light of the evidence presented by the parties. 5. The act of the court in proceeding with the sale without deciding the application under Section 47 CPC caused serious prejudice to the petitioner.
Final Decision: The court allowed the civil revision petition, set aside the order of the executing court, and remitted the matter back to the executing court for fresh adjudication.
JUDGMENT
Lalitha Kanneganti, J. - The present civil revision petition under Section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C.') is filed assailing the order dated 12.08.2016 passed in E.A. No. 178 of 2012 in E.P.No.8 of 2008 in O.S. No.55 of 2000 on the file of II Additional District Judge, Vijayawada whereby the petition filed by judgment debtor No.2 under Section 47 read with Section 151 of C.P.C. was dismissed.
2. The facts in brief are that:
3. The revision petitioner who is judgment debtor No.2 (wife of the 1stJ.Dr) entered into agreement of sale with Vemuri Hasitha on 09.08.2007 for a consideration of Rs.52,50,000/-. On being intimated about the decree, the petitioner and the vendee approached the decree holder and according to the affidavit filed in E.A No.178 of 2012, orally it was settled for Rs.29,95,000/-. Accordingly on 31.03.2008, an amount of Rs.20,000,000/- was paid in two spells towards part payment and the decree holder/plaintiff acknowledged and issued receipts. The decree holder also informed the petitioner by way of letter dated 21.09.2008 confirming the balance of debt of Rs.9,95,000/-. Thereafter vendee paid an amount of Rs.3,00,000/- on 28.03.2009 and the same was acknowledged by the decree holder by way of a receipt.
4. As per the averments in the affidavit, the vendee requested decree holder to handover the title deeds of the schedule property by tendering balance amount of Rs.6,95,000/. The averments in the affidavit further reveal that the vendor demanded higher amount of Rs.57,50,000/- instead of agreed amount of Rs.52,50,000/- towards sale consideration. Accordingly on 17.06.2009 registered sale cum GPA was executed in favour of vendee for Rs.57,50,000/- and delivered possession of the schedule property to the vendee on 18.06.2009. It was further stated that the vendee approached the decree holder in the second week of July, 2010 along with Rs.6,95,000/- and to their surprise the decree holder demanded Rs.8,00,000/- instead of Rs.6,95,000/-. The vendee deposited the balance amount of Rs.6,95,000/- to the credit of E.P. on 14.07.2011 and filed E.A. No.178 of 2005 under Section 47 CPC to dismiss the E.P.
5. The decree holder filed counter and contended that some other decrees were passed against judgment debtor No.2/petitioner basing on the suits filed by Margadarsi Chit Fund, Hyderabad in O.S. No. 1139 of 1999 on the file of V Addl. Senior Civil Judge, City Civil Court, Hyderabad; O.S. No. 229 of 2000 on the file of I Addl. Senior Civil Judge, Vijayawada and the petition schedule property was attached before judgment in I.A.No.418 of 2000. The letter dated 21.9.2008 is not binding on the 1st respondent/decree holder. It is stated that neither the petitioner/2nd judgment debtor nor vendee honoured the promise and failed to fulfil the conditions of settlement. The cheque issued by vendee of petitioner is dishonoured on 01.10.2008 and the said fact was also informed by the 1st respondent/d
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