SRI LAXMI SRINIVASA TRADERS Vs. GAUTHAM TRADING COMPANY

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order of the Principal District Judge, Suryapet, dtd. 16/6/2023, allowing E.A.No.15 of 2023 in E.P.No.598 of 2018 in O.S.No.125 of 2019 filed by the plaintiff/Decree Holder, who is the respondent herein, under Sec. 151 C.P.C., seeking to issue fresh warrant of attachment of immovable property with modified boundaries as mentioned in the schedule for due execution of decree.

(2.) The facts, in brief, are as under: The respondent/plaintiff filed the above suit against the revision petitioners/defendants for recovery of Rs.16,45,133.00 together with future interest at the rate of 36% per annum from the date of suit till the date of realization. Summons sent to defendant No.1 returned unserved as refused. However, the plaintiff not pressed the suit against defendant No.2 and hence the suit against defendant No.2 was dismissed. Plaintiff's evidence was recorded. Basing on the evidence of plaintiff, who was examined as P.W.1, and the documents filed by him, the trial Court decreed the said suit in favour of the plaintiff and against 1st defendant firm by judgment dtd. 5/8/2016 holding that defendant No.1 firm represented by defendant No.2 is liable to pay a sum of Rs.16,45,133.00 with interest at 7.5% per annum from the date of order till the date of realisation on the principal sum. Thereafter, the respondent/D.Hr. filed E.P.No.598 of 2018 seeking to attach the E.P. schedule immovable property of the judgment debtor/defendant No.1. The trial Court passed an attachment of the E.P. schedule property of the J.Dr. During the process of execution of attachment, the Bailiff of the Court had returned the warrant since the boundaries were not tallied. Therefore, the respondent/D.Hr again filed the aforesaid E.A.No.15 of 2023 seeking to issue a fresh attachment warrant with modified boundaries of the flat as mentioned in the schedule for due execution of the decree.

(3.) The Judgment Debtor No.2 filed counter and opposed the application stating that the D.Hr. himself withdrawn the suit against judgment Debtor No.2 and accordingly the trial Court passed decree and judgment against defendant No.1/J.Dr No.1. J.Dr.No.2 filed his vakalat in his individual capacity only, but not in the capacity of proprietor of J.Dr.No.1 firm. It is further stated that J.Dr.No.1 firm was already closed before filing of the suit by the D.Hr and the said fact was known to the D.Hr. The D.Hr. also filed two cheque bounce cases and the same were dismissed by the criminal Court and there was no property in the name of J.Dr No.1. The E.P. schedule shown by the D.Hr. is pertaining to 34 Flats, but not the schedule of Flat No.204. It is further stated that J.Dr.No.2 already alienated the E.P. schedule property in favour of one K.Venkateswar Rao in the year 2014 itself, who in turn mortgaged the said house with Canara Bank, Kodad for housing loan and for educational loan of his daughter. Therefore, there is no property available as shown in the E.P. schedule and as such the trial Court cannot attach the property as it belongs to the said K.Venkateswar Rao. The D.Hr. has not filed any proof of ownership showing that the E.P. schedule property belongs to J.Dr.No.1. It is further stated that the D.Hr. unnecessarily dragged J.Dr.No.2 into the present legal proceedings by making him as a party to the E.P. proceedings though there is no decree against him and as such the present E.P. is not executable as per the provisions of Sec. 47 of C.P.C. Therefore, he prayed the Court to dismiss the application.