IMPORTANT POINT
IMPORTANT POINT
The decree-holder is entitled to withdraw the amount deposited as security despite the pending appeal, as the appeal does not stay the cheque petition under Order 41 Rule 6(2) of CPC.

ORDER :

(K. Surender, J.) :

1. This Civil Revision Petition is filed by the decree holder (petitioner herein) against orders dated 10.12.2015 in E.A.No.49 of 2015 in E.P.No.38 of 2013 whereby the learned trial Judge refused the prayer of the decree holder to issue account payee cheque for Rs.12,03,518/- out of the amount of Rs.14,93,980/- deposited as security in E.A.No.119 of 2014.

2. E.A.No.119 of 2014 was filed by the judgment debtor (respondent herein) to deposit the entire decretal amount before the trial Court towards security and to stall the proceedings till the appeal is disposed off in accordance with the provisions of Order 41 Rule 6(2) of CPC.

3. Briefly, the back ground of the case is that the suit was filed by the plaintiff-M.Nageshwar Rao for specific performance of agreement of sale directing the defendant in the suit to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property or in the alternative to return the advance amount of Rs.4,75,000/- along with interest at the rate of 18% per annum which works out to Rs.7,18,628/- vide O.S.No.1634 of 2006. The said suit for specific performance was dismissed, however, alternative relief was granted by decreeing the suit to refund an amount of Rs.7,18,628/- vide judgment dated 25.08.2010.

4. The judgment debtor/defendant filed appeal vide CCCA No.22 of 2011 before this Court. CCCA.M.P.No.44 of 2011 was filed whereby this Court granted interim stay of all further proceedings including execution of judgment. CCCAMP No.304 of 2011 was again filed by the decree-holder to vacate the interim order passed in CCCA.M.P.No.44 of 2011. This Court by order dated 28.06.2011 made the interim stay absolute subject to the condition of judgment debtor depositing half of the decreetal amount within a period of eight weeks. On such deposit, the plaintiff/decree holder was permitted to withdraw without furnishing any security. Further, this Court also held that interim stay would stand vacated and it is open for the decree-holder to proceed with the execution of the decree.

5. E.P.No.41 of 2011 was filed seeking attachment of the suit schedule property and to conduct sale and realize the EP amount. Learned Judge at Zaheerabad, to which the case was transferred for execution, conducted enquiry and passed orders issuing attachment warrant of the execution of petition schedule property.

6. In execution of the warrant, proclamation was made and sale notice was issued in respect of the property on 28.04.2014. Thereafter, the judgment debtor deposited an amount of Rs.14,93,980/- by way of two demand drafts in the Court below and also informed regarding pendency of the appeal vide CCCA No.22 of 2011. Pursuant to the deposit of the amount, sale was stopped. E.A.No.119 of 2014 was filed to permit the judgment debtor to deposit the entire decreetal amount as security in accordance with the order 41 Rule 6(2) of CPC. E.P.No.38 of 2013 which was filed, was closed since the judgment debtor deposited more than the E.P amount.

7. Questioning the orders passed in E.P.No.38 of 2013 and E.A.No.119 of 2014, CRP No.4664 of 2015 and CRP No.4649 of 2015 were filed before this Court. This Court by order dated 06.11.2015 while disposing of the petitions at the stage of admission, directed the Court below to consider objections by the judgment debtor in the cheque petition and decide the cheque petition in accordance with law without being influenced by observations made in the order.

8. Pursuant to the orders passed in CRP Nos.4664 and 4649 of 2015, I.A.No.49 of 2015 was filed in E.P.No.38 of 2013. Learned judge dismissed the petition of the decree holder finding that since the amount was deposited as security, the decree-holder is not entitled to withdraw the amount by presenting the cheque petition until appeal is disposed off.

9. Learned counsel appearing for the revision petitioner would submit that the petition filed under Rule 230 and 232 of Civil Rules of Practice