Zaraninagar Z Adam v. D.Kamalakar Reddy

^ Counsel for the petitioner: Mr.O.Udaya Kumar ! Counsel for the respondent: --- < Gist: > Head note: ? Cases referred: (1982) 2 SCC 463 (2003) 2 SCC 111 The Hon'ble Sri Justice C.V.Nagarjuna Reddy Civil Revision Petition No.2326 of 2012 Date: 07-06-2012 Between: Zaraninagar Z Adam And D.Kamalakar Reddy …Petitioner …Respondent Counsel for the petitioner: Mr.O.Udaya Kumar Counsel for the respondent: --- The Court made the following: The Hon'ble Sri Justice C.V.Nagarjuna Reddy Civil Revision Petition No.2326 of 2012 Order: Date: 07-06-2012 This Civil Revision Petition is filed against Order, 09-03-2012, in IA.No.372 of 2010 in OS.No.81 of 2009, on the file of the Court of the learned Principal Senior Civil Judge, Tirupathi. The petitioner is the defendant in the above- mentioned suit filed by the respondent for recovery of money. The said suit was decreed ex parte on 08-12-

2009. The petitioner filed IA.No.372 of 2010 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for setting aside the ex parte decree. The said application was allowed by the lower Court subject to the condition that the petitioner shall deposit half of the decretal amount on or before 09-04-2012. Assailing this order, the petitioner filed the present Civil Revision Petition. I have heard Mr.O.Udaya Kumar, learned Counsel for the petitioner, and perused the record. A perusal of the order of the lower Court would show that the Counsel for the petitioner has submitted before the lower Court that his client is willing to deposit half of the decretal amount subject to the result of the suit. The lower Court has, accordingly, stipulated the condition of payment of half of the decretal amount. At the hearing, the learned Counsel for the petitioner stated that his counter part in the lower Court has not made any statement that his client is willing to deposit half of the decretal amount and pursuance of an order of attachment of the petitioner’s s a la ry vide EP.No.42 of 2010, substantial amounts have already been deposited before the Court by garnishee.

As regards the first submission of the learned Counsel for the petitioner, no ground has been raised in the Civil Revision Petition disputing the finding of the lower Court on the statement made by the learned Counsel in the lower Court regarding the willingness of the petitioner to deposit half of the decretal amount. Even if any such ground has been raised, the law is well settled that the statement of facts as to what transpired at the hearing as recorded in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. (s ee State of Maharashtra vs. Ram Das Srinivas Naik [1] and Bhavnagar University vs. Palitana Sugar Mills [2] . Therefore, I am not inclined to accept the submission of the learned Counsel for the in this regard. With regard to the second submission of the learned Counsel for the petitioner that certain amounts have already been deposited through the garnishee in pursuance of the order of attachment, the lower Court is directed to give credit to the amounts, if any, deducted from the petitioner’s salary and deposited before it, while computing 50% of the decretal amount.

The learned Counsel for the petitioner finally made a request to extend the time stipulated by the lower Court for deposit of the amount. Accordingly, the time is extended till 30-06-2012 for making the deposit. Subject to the above direction, the Civil Revision Petition is dismissed. As a sequel, CRPMP.No.3101 of 2012, filed by the petitioner for interim relief, is disposed of as infructuous. 7th June, 2012 Note: __________________________ (C.V.Nagarjuna Reddy, J) LR copy B/o LUR [1] [2] (1982) 2 SCC 463 (2003) 2 SCC 111