RAJANA VENKU NAIDU Vs. MANUGULA RAJA NAIDU

JUDGEMENT

(1.) The above two C. R. Ps. Can be disposed of together. C. R. P. No. 4874/80 is directed against E. A. No. 131/77 in E. P. No. 117/76 in S. C. No. 352/57 on the file of the District Musifs Court, Chodavaram. C. R. P. No. 7135/79 is directed against C. M. A. No. 5/77 on the file of the Sub Court, Chodavaram.

(2.) The petitioner before me in both the C. R. Ps. Is the decree-holder. He filed E. P. No. 117/76 for execution of the decree in the trial court. The respondent-judgment-debtor raised a plea under Ordinance 25 of 1976 (later replaced by Act 7 of 1977) and claimed that the decree could not be executed as it was wiped out under the provisions of the said Ordinance. The case was posted to 18-2-1977 for enquiry. The petitioner-decree-holder wanted to examine the village Karnam of the village which the judgment-debtor was a resident in order to furnish proof of the agricultural land owned by the judgment-debtor, but for some reason or other the village Karnam could not be served with the summons sent. On behalf of the petitioner the counsel prayed for an adjournment when the matter was called on 18-2-1977. The learned trial Judge refused the adjournment on the ground that the petitioner was not ready and dismissed the E. P. on the same day stating as follows:

(3.) The learned District Munsif who heard E. A. No. 131/77 dismissed the same on 31-8-1977 stating that the order passed by his predecessor on 18-2-1977 was not an order made for default of the petitioner but it was an order passed on merits of the E. P. and that it was open to the petitioner but it was open to the petitioner to refer a revision. He also referred to events anterior to 18-2-1977 to say that the petitioner had no sufficient cause for his non-appearance, as he was not ready on the dates of the earlier adjournments. According to him it was to be treated as a case where the evidence on the side of the decree-holder was closed. Therefore he dismissed the petition. Against the said order the petitioner preferred C. M. A. 5/77 to the Sub-Court, Chodavaram contending that the order dated 18-2-1977 in the E. P. was an order dismissing the same for default and could not be said to be an order passed on merits. The learned Subordinate Judge dismissed the appeal stating that the order dated 18-2-1977 was an order passed on merits and the petitioner should have gone by way of revision to the High Court and that therefore the application under Order 21, Rule 106, C. P. C. was not maintainable. Against the order passed in C. M. A. the petitioner has filed C. R. P. No. 7135/79 while against the order dated 31-8-1977 dismissing E. A. No. 131/77 the petitioner has filed C. R. P. No. 4874/80 subsequently. That is how these two C. R. Ps. Have come before me.