M VISHNUVARDHANA REDDY Vs. SAYA NAGAPPA

JUDGEMENT

(1.) This revision petition is filed being aggrieved by the order dated 28-6-1999 passed by the Principal Junior Civil Judge, Kurnool on EA No.563 of 1999 in EP No.316 of 1997 in OS No.256 of 1996. By the impugned order, the petition filed by the petitioner-judgment debtor in EA No.563 of 1999 to determine the disobedience of the decree in terms of Section 47 of CPC is dismissed on the ground that the petitioner after notice look adjournment for one year for filing counter and he did not file counter. Consequently vide order dated 14-10-1998 in EP No.316 of 1997 in OS No.256 of 1997, the Court below directed detention of the petitioner -judgment-debtor for disobedience of the decree of the Court.

(2.) The learned Counsel for the petitioner contended that the Court below has failed to exercise its jurisdiction vested under Section 47 of CPC and, therefore, the impugned order is illegal. In support of his contention, he relied upon the judgments reported in Thakur Prasad v. Kasturi Narain, AIR 1935 All. 364, and K. Ram Mohan v. Mogal Ahmed Baig, 1997 (5) ALD 616 = 1997 (5) ALT 85. The Counsel appearing for the respondent strenuously supported the impugned order, contending that after service of notice in the execution petition, the petitioner - judgment-debtor entered into appearance through an Advocate, but he did not file counter for one year and, therefore, the Court below placed him ex parte and on the basis of the material produced by the decree-holder, it decided vide order dated 14-10-1998 by holding that the judgment-debtor has disobeyed the injunction decree and consequently directed detention of the judgment-debtor. After that, the judgment-debtor has filed the present application in EA No.563 of 1999 to determine the disobedience of the decree. When this matter was already decided by an earlier order dated 14-10-1998 passed in EP No.316 of 1997 in OS No.256 of 1996, it operates as res judicata and the same cannot be reagitated and the present application under Section 47 of CPC would not be maintainable. By filing objections the petitioner-judgment-debtor could have raised all the contentions that were open to him under Section 47 of CPC immediately after service of notice in the execution petition and that he has not done, therefore, the earlier order operates as res judicata. In support of his contention, he relied upon the judgments reported in Perraju v. Venkamma, AIR 1971 AP 74, K. Ramayya v. K. Nageswara Rao, AIR 1969 AP 250, Pushpa v. Ganpat Singh, AIR 1977 Raj. 216 and Ramnup Rai v. Cheodhari Kuer, AIR 1980 Pat 197. The learned Counsel for the respondent further submitted that the discretionary order of the Court below does not call for any interference under Section 115 of CPC and accordingly the revision petition is liable to be dismissed.

(3.) Both the Counsel took me through the impugned order. The earlier order dated 14-10-1998 passed in the execution petition also has been brought to my notice. From the reading of both the orders and also on the basis of the contentions urged by learned Counsel on both sides, I find that few things are admitted. It is admitted that an ex parte decree was passed against the present petitioner-judgment-debtor. The said decree was for a permanent injunction restraining the judgment debtor and his men and anybody on his behalf from digging or laying big pipe line through the suit schedule land and from digging gaint size ring well on either side of the plaintiffs small ring well without leaving requisite distance from the plaintiffs ring well. In the execution petition, the decree holder alleged that, the judgment debtor has laid a pipe line through item No.1 of the suit schedule land after the decree was passed inspite of the protest by him and accordingly the judgment-debtor has disobeyed the decree. It is not in dispute that, in the execution petition, notice was issued to the judgment-debtor and the judgment-debtor entered into appearance by engaging an Advocate and he was taking time for filing counter to the execution petition, and he did not file objections for a period of one year and thereafter he was placed ex parte. After perusing the affidavit and also the material produced by the decree-holder, the executing Court passed an order dated 14-30-1998 in EP No.316 of 1997 in OS No.256 of 1996, determining that the judgment-debtor has disobeyed the decree and consequently directed the detention of the judgment-debtor for such disobedience. It is only thereafter the judgment-debtor filed the present application in EA No.563 of 1999 requesting the Court to determine whether there is really disobedience of the decree or not in terms of Section 47 of CPC. The learned Counsel for the petitioner submitted that the Court below should have allowed the present EA and determined the disobedience of the decree. But the Court below has taken an erroneous view that once the judgment-debtor was placed ex parte and an order was passed, he cannot be deemed to be a party for the purpose of Section 47 of CPC. He further submitted that since it was an ex parte decree and even the earlier order dated 14-10-1998 passed in the EP No.316 of 1997 was an exparte order, the petitioner - judgment-debtor could still file one petition under Section 47 of CPC and the judgment-debtor being a party to the suit as defendant, is entitled to raise all the contentions regarding disobedience in terms of Section 47 of CPC. Accordingly he submitted that the Court below was in error in dismissing the present application. As I have already stated above, in support of his contentions, he relied upon the judgments Thakur Prasad v. Kasturi Narain and K. Ram Mohan v. Mogal ahmed Baig (cited supra).