Decided on April 18,1963



Gopalakrishnan Nair, J. - (1.) This Letters Patent Appeal is from the appellate judgment dated 19th January, 1963 of our learned brother, Munikannaiah, J. The matter relates to proceedings in execution of a money decree passed against the appellant-judgment-debtor on 9-2-1952 in 0. S. 294 of 1951 on the file of the City Civil Court, Hyderabad.
(2.) It is necessary to trace briefly the history of these execution proceedings. The then Hyderabad State Bank instituted a money suit, 0. S. 294 of 1951, against the appellant and obtained a decree on 9-2-1952 for Rs. 6,377-7-9 with interest at 6% per annum from the date of decree. The Judge who passed the decree, was the Second Judge of the Hyderabad City Civil Court. The decree granted a period of six months for payment of the decretal amount. This period expired on 8-8-1952. The judgment-debtor did not pay. Therefore the decree-holder-Bank tiled execution petition No. 183/3 of 1952-53 for recovering the amount by attachment and sale of certain moveable properties of the judgment-debtor. The judgment-debtor thereupon filed an application under the Hyderabad Money Lenders Act for payment of the decree debt in monthly instalments of Rs. 100/-. That application was dismissed on 5-12-1952, the judgment-debtor filed another application under Order 21, Rule 2 C. P. C. setting up an agreement between himself and the decree-holder for payment of the decree debt in monthly instalments of Rs. 10/- and also claiming payment of some instalments in pursuance of this agreement. MB COmplained that the instalments so paid have not been credited by the decree-holder towards the decree debt. The decree-holder Bank in its objections denied the existence of any such agreement and stated that a third person had paid certain amounts into the Bank to the account of the judgment-debtor and that the Bank was willing to give credit to the Judgment-debtor for those amounts.
(3.) This application was posted for enquiry to 7-2-1953;. but the judgment-debtor was absent on that day, and therefore, the executing Court ordered that the sum of Rs. 110/- admitted by the decree-holder be credited towards the decree and that a warrant for attachment of the moveables of the judgment-debtor he issued for the balance payable under the decree. It was further ordered that the execution petition be celled on 20-2-1953. On 9-2-1953, the judgment-debtor filed another application in the executing Court stating that he did not appear on 7-2-1953 because he was given to understand that the decree-holder would move for an adjournment and that therefore the ex parte order was passed against him on 7-2-1953 should be set aside and his application under Order 21, Rule 2, C.P.C., enquired into and disposed of on the merits. The decree-holder did not raise any serious objection to this application, with the result that the application under Order 21, Rule 2, C.P.C. was posted for enquiry. After some adjournments, the judgment-debtor examined himself and another witness on 16-4-53 and closed the evidence on his side. The proceedings were then adjourned to 254-1953 and thereafter to 15-6-1953 for recording evidence on behalf of the decree-holder. On 15-6-1953, one witness on behalf of the decree-holder was examined. The judgment-debtor, however, refused to cross- examine the witness and asked the Court for time to move the High Court for transfer of all the proceedings pending before the particular Judge (now Kumarayya, J.). It appears that by 29-6-1953 (the judgment-debtor had obtained a stay of proceedings from the High Court on 23-11-1953) the judgment-debtors application for transfer was dismissed by High Court. On 13-2-1954 the judgment-debtor applied to the executing Court for summoning the decree-holders witness whom he had previously declined to cross-examine. That application was rejected. The judgment-debtor thereupon preferred Appeal No. 158/1 of 1953-54 to the Hyderabad High Court against that order. In pursuance of this appeal, the High Court called for the records of the lower Court by letter No. 1192 dated 17-2-1954. The next day all the records in the execution proceedings were transmitted to the High Court. The appeal eventually came up for hearing before the present High Court (High Court of Andhra Pradesh at Hyderabad) and was dismissed for default. The appellant-judgment-debtor thereafter moved the High Court for restoration of the appeal and the High Court by order dated 6th January 1959, directed restoration on condition of the appellant paying to the respondents advocate a sum of Rs. 50/- as costs within a time specified. The appellant-judgment-debtor did not comply with this condition and consequently the application for restoration was dismissed on 21st January, 1959. Thereafter the execution records which had been transmitted to the High Court were returned to the 1st Additional Judge, City Civil Court, who renumbered the execution petition as E. P.. 20/59 on 12-3-1959 and directed notice to the parties returnable by 6-4-1959.;

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