Chittimalla Umakanth v. Kokkonda Laxmi Shobha

Petition under section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to stay all further proceedings including the warrant of attachment of salary vide orders daled. 29.02.2024 in E.P.No.10 of 2022 in O.S.No.'17 of 2020, on the file of the Principal Senior Civil Judge at Hanamkonda. Counsel for the Petitioner : Sri D V Chalapathi Rao Counsel for the Respondent : None appeared The Court made the following: ORDER n/ E SRI JUSTICE LAXMI NARAYANA ALISHETTY ,' REVISION PETITION No.2252 of 2o24 -(: This Civil Revision Petition is frled against the order dated

29.O2.2O24 passed in E.P.No. 10 of 2022 in O.S.No. 1Z of 2O2O on the lile of the Court of principal Senior Civil Judge at Hanamkonda.

2. Heard Sri D.V. Chalapathi Rao, learned counsel for the petitioner. Notice sent to respondent returned with an endorsement party left, and the notice taken on counsel appearing on behalf of the respondent before the triai Court is served, however, there is no representation on behalf of the respondent.

3. Petitioner herein is judgment debtor and respondent herein is decree holder. 4. The brief facts of the case are tfrat respondent herein filed suit in O.S.No.l7 of 2O2O for recovery of money on |O.O2.2O2O before the Court of the principal Senioi Civil Judge, Warangal which is just before covid pandemic period. The summons issued by the trial court to the petitioner herein were not served and as per the report filed by serving officer the summons were affixed to the door of the house of the petitioner. The trial Court orr 79-O2.2O21 considering the above facts and circumstances, held that the service of summons as sufficient and petitioner herein was called absent and was set ex parte and thereafter suit was decreed in favour of the respondent herein on 2 lO.O8.2O2l. Petitioner herein frled arr application under Order IX, Rule 13 for setting aside the ex parte decree dated

10.08.2021 along with an application under Section 5 of the Limitation Act to condone the delay in hling application to set aside ex parte decree and both the applications are pending adjudication. In the meanwhile respondent herein filed execution petition to execute the decree dated 1O.08.2021 vide E.P.No. 10 of 2022. The trial Court vide its order dated 29 .O2.2024 passed an order in E.P.No. 10 of 2022 for attachment of salar5r of the petitioner herein and aggrieved by the order dated 29.02.2024 present revision petition is liled.,

5. It is contended by learned counsel for the petitioner that suit was filed just before the covid pandemic period and petitioner herein was working as head constable in the police department. The trial Court erroneously considered afhxing of summons on the door as sufficient service and set the petitioner ex parte on 19 .O2.2O2O, further adjudicated the suit and decreed the suit on 1O.O8.2O21 which is also during the covid pandemic period. Two applications which are filed by the petitioner for setting aside the ex parte decree and to condone the delay-in filing the Order IX, Rule 13 application are pending and without adjudicating the application, the trial Court entertained E.P and also passed order attaching salary of the petitioner. In these circumstances, it is contended by learned counsel for the petitioner that the trial Court may be directed to dispose of the applications filed under Order IX, Rule 13 arrd -Z 3 application filed under Section 5 of the Limitation Act first and then to proceed with the E.P.

6. Perusal of the record discloses that admittedly, suit was filed just before the covid pandemic and the petitioner herein was set ex parte on 19.02.2021 basing on the report of the Serving Officer that summons were affixed on the door of the house of the petitioner and the date on which the suit was decreed is also covid pandemic period. In considered opinion of this Court, the tria,l Court ought to have given sufficient opportunity to the petitioner herein to contest the matter since the petitioner herein was working as head constable in police department and he was performing his dulies at Hyderabad. Further, the trial Court ought to have considered the applications filed by the petitioner to set aside tlre ex parte decree as well as application filed under Section 5 of the Limitation Act before passing any order in E.P.No.1O of 2022 -

7. Therefore, considering the submissions made by iearned counsel for the petitioner and taking into consideration the evidence placed on record, this Court is inclined to set aside the impugned order passed by the trial Court dated 29.O2.2024 in E.P.No.10 of 2022 in O.S.No.17 of 2O2O and the trial Court is directed to adjdudicate the applications filed by the petitioner under Order IX, Rule 13 of CPC as well as Section 5 of Limitation Act as expeditiously as possible and till such time the proceedings in E.P are stayed. Learned counsel for the petitioner also represented that after frling of the revision also I t I 4 salary of the petitioiler has been attached and amounts are deducted during the pendency of the revision' Therefore' petitioner is at Iiberty to file appropriate application for withdrawal of the salary deducted pursuant to the impugned order dated 2g.O2-2O24 and on such application being irled the tiial Court shall pass necessary orders expeditiously' 8. With the above said direction' civil revision petition is disposed of. There shall be no order as to costs' As a sequel, miscellaneous petitions' pending it any' shall stand closed. Sd/- MOHD. ISMAIL T REGISTRAR ASSI //TRUE COPY// ECTION OFF ICER To, 1 The Principal Senior Civil Judge at Hanamkonda 2. One CC to Sri D V Chalapathi Rao, Advocate [OPUC] 3. Two CD Copies AD}</PSL HIGH COURT DATED:2710212025 ORDER CRP.No.2252 af 2024 .!;r. ,,i STAT g d 24 illfl 2r2s : c f (' e1F DISPOSING OF THE CRP WITHOUT COSTS @yq