The Executive Engineer, A.P. Housing Board, Tadepalligudem vs Prayaga Subrahmanya Prabhakara Chiranjeevi Rao & Ors.

The Civil Revision Petitions C.R.P.No. 6528 of 2017 and C.R.P.No. 1801 of 2018 are preferred against the orders dated 04.10.2017 and 12.09.2017 passed in E.P. No.96 of 2009 in L.A.O.P. No.32 of 1997 on the file of the learned Civil Judge (Senior Division), Bhimavaram.

Andhra Pradesh Housing Board (in short referred as APHB) is the revision petitioner. Respondent No.1 is the Decree Holder (DHR) and the respondent No.2 is the LAO (LAO).

Initially, the APHB challenged only the order dated 04.10.2017. During the pendency of C.R.P. No.6528 of 2017, since the APHB did not challenge the order dated 12.09.2017, this court granted liberty to the APHB to challenge the said order. Pursuant thereto, C.R.P. No.1801 of 2018 was preferred.

The Andhra Pradesh Housing Board has preferred C.R.P. No.6528 of 2017 challenging the order dated 04.10.2017 passed in E.P. No.96 of 2009 in L.A.O.P. No.32 of 1997, whereby the learned executing court made the attachment absolute for Rs.76,00,000/-.

The Andhra Pradesh Housing Board has preferred C.R.P. No.1801 of 2018 challenging the order dated 12.09.2017 passed in the same E.P., whereby the learned executing court allowed the E.P. and ordered attachment under Order XXI Rule 52 CPC, determining the amount due at Rs.27,90,249/-.

These two C.R.Ps. arise out of orders passed on different dates in the same execution petition. Therefore, this Court is taking up both revisions together and disposing of them by a common order.

Heard learned counsel for the APHB, Sri D. Ranganath Kumar and learned counsel for respondent No.1 Sri M.V. Suresh.

The APHB, Hyderabad, sent a requisition for acquisition of lands to an extent of Ac.31-12 cents in R.S. Nos.257/2A, 259/1, etc., of Gunupudi Village, Bhimavaram Mandal, West Godavari District, for construction of houses for the general public. In the said lands, the land of respondent No.1 was also included in the requisition, to an extent of Ac.0-42½ cents in Survey No.260/2. A notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the Act") was issued on 10.11.1993, followed by a declaration under Section 6 of the Act vide notification dated 30.12.1993.

Pursuant to the notification, the LAO, respondent No.2 herein, conducted an enquiry and fixed the compensation at the rate of Rs.7,020/- per cent, i.e., Rs.7,02,000/- per acre, for the disputed land of respondent No.1.

The claimants, aggrieved by the award of compensation, sought a reference under Section 18 of the Act to the Civil Court for enhancement of compensation. Accordingly, the LAO referred the matter to the Reference Court.

The Reference Court, on appreciation of the material available on record, concluded that the market value of the acquired land fixed by the LAO was not just and proper and determined the market value of the acquired land at the rate of Rs.25,000/- per cent, i.e., Rs.25,00,000/- per acre, and accordingly awarded the same along with solatium at the rate of 30% on the market value, additional market value at the rate of 12% on the market value, and interest at the rate of 9% on the compensation amount from the date of possession of the land for one year and further interest at the rate of 15% on the compensation amount till the date of payment, vide order dated 30.10.2006.

The LAO herein preferred L.A.A.S. No.193 of 2007 and the claimants also preferred L.A.A.S.M.P. No.1595 of 2008 before this Court. This Court dismissed the appeal/application filed by the LAO and the claimants and confirmed the orders passed by the Reference Court.

The said order was carried before the Hon’ble Apex Court by the Andhra Pradesh Housing Board, with the LAO as Respondent No.2. Pending the said challenge, the Hon’ble Apex Court passed the following interim order:

As per the aforesaid interim orders, the APHB deposited an amount of Rs.54,22,814/-, and respondent No.1 withdrew the said amount. An amount of Rs.2,94,840/- had previously said tohave been deposited by the APHB on 11.05.1997. Respondent No.1 raised objections about the amount deposited by the APHB and contended that an additional amount is payable.

According to Respondent No.1/DHR, after giving credit for the amount of Rs.54,22,814/- deposited by the APHB, a sum of Rs.17,34,284/- remained due. He further calculated interest on the principal amount of Rs.14,76,875/- at the rate of 15% per annum from 02.11.2011 to 09.08.2016, amounting to Rs.10,55,965/-. Thus, Respondent No.1/DHR claimed a total additional amount of Rs.27,90,249/-.

The APHB, the LAO and respondent No.1 filed their respective calculation memos. Respondent No.1, in the E.P., originally claimed an amount of Rs.73,95,451/-. Subsequently, in the calculation memo dated 09.08.2016, respondent No.1 claimed that a balance amount of Rs.27,90,249/-was payable. The APHB disputed the said calculation and contended that the amount already deposited was in excess of the amount actually payable.

Respondent No.1 claimed the due amount, whereas the APHB contended that the amount deposited by it was in excess of the amount actually payable.

Upon contest, the Executing court held that the calculation memo filed by the Decree Holder (DHR) was not correct concerning the interest, while the calculation memo filed by the Judgment Debtor (JDR) was also not in accordance with the applicable directions. Thereafter, the executing court arrived at the amount due and payable as follows:

Extracted from the order:

The learned Judge, providing his reasoning, held that the amount due and payable is Rs.27,90,249.

Accordingly, he allowed the Execution Petition and ordered issuing Order 21 Rule 52 of CPC for attachment of the account of JDR upon deposit of process.

However, upon deposit of process, the learned Judge issued a warrant of attachment for Rs.76,00,000/- instead of Rs. 27,90,249/-.The same is extracted hereunder.

SriD. Ranganath Kumar, learned counsel for the APHB argued that pursuant to the directions of the Hon'ble Apex Court, APHB has already deposited an amount of Rs.54,22,814/-. Subsequently, while disposing of the appeals, the Hon’ble Apex Court granted interest at the rate of 10% on the compensation amount for the period from 12.05.1982 to 10.11.1993 and modified the order to that extent. However, the D.H.R. has erroneously applied the old interest and then arrived at a higher calculation. The amount deposited by the J.D.R. is correct and complies with the directions of the Hon'ble Apex Court. Even though the J.D.R. has properly deposited the amount, the learned Judge has ordered that an amount of Rs.27,90,249/- is due, without appreciating the facts. He further argued that the learned Judge, though arrived at the due amount of Rs.27,90,249/-, ordered the attachment of the bank account of the APHB for Rs. 76,00, 000/- vide order dated 04.10.2017, which is contrary to the findings recorded by the learned Judge.

Learned counsel further submitted that the said order dated 04.10.2017 is challenged under C.R.P. No.6528 of 2017. In the said revision, upon his contest, this Court passed interim orders confining the attachment to Rs. 27,90,249/-. Learned counsel has taken this Court to the summons of attachment ordered by the executing court and the interim orders of this court. Learned counsel submitted that the court erred in attaching an amount of Rs. 76,00,000/-, which is beyond its own observation.

He further argued that the Executing court, after issuance of warrant of attachment, on receiving the report of execution of warrant attaching the amount of Rs. 76,00,000/-, recorded the same, made the order absolute and closed the EP.

Accordingly, the APHB has challenged the said order in the revision, CRP No.6528 of 2017.

Learned counsel submitted that, due to this attachment, its transactions were held up and they are unable to meet their financial commitments, including payment of salaries.

In reply, learned counsel for respondent No. 1, SriM.V. Sureshargued that the learned Judge has properly arrived at the amount due and payable by the APHB. The calculation made by respondent No.1 is proper, and there is no deviation from the decree or the orders passed by the Hon'ble Apex Court.

Heard both learned counsels, and I have perused the record.

In these two revisions, the controversy is that, although both parties dispute the amount determined by the Execution Court, their grievance is that, contrary to the amount arrived at, the court ordered attachment for an excess amount. Without noting this discrepancy, the executing court made the order of attachment absolute and closed the E.P.

The process of warrant extracted hereunder:

The first revision, challenging the above order of attachment, is C.R.P.No.6528 of 2017. Upon considering the contention of the APHB, this court has passed interim orders dated 26.12.2017, which are as follows:

This court prima facie found that the amount due is Rs.27,90,249/- only and effected attachment to that extent only, and stayed further proceedings. By the time of the orders, the Execution Court had closed the EP, recorded attachment for an amount of Rs.76,00,000/- absolute and closed the EP.

The impugned order of the Execution Court and the challenge therein also reflect that the amount of Rs.27,90,249/- is the arrived amount of the court. However, the learned Judge passed an order attaching the bank account of the APHB under Order XXI Rule 52 CPC for an amount of Rs.76,00,000/-.

This is contrary to the orders of the executing court, which appears to be an apparent error. Therefore, the order of attachment for Rs.76,00,000/-cannot be sustained. This requires the interference of this Court.

The record shows that, the learned Judge considered the directions of the Hon'ble Apex Court while disposing of the land acquisition appeals, the order of the Reference Court, as confirmed by this Court, were considered. The Hon'ble Apex Court granted interest 10%on the compensation amount for the period 12.05.1982 to 10.11.1993 and modified the High Court order only to that extent.

Pursuant to the interim orders of the Hon'ble Apex Court, the APHB deposited the amount, which is not in dispute. However, respondent No.1 appears to have calculated the subsequent amount by adding interest at 15%, though the Hon'ble Apex Court gave no such finding or direction. These discrepancies in the calculations require further appreciation of evidence. Without noting the discrepancy, closing the execution proceedings affects the subject matter itself. Therefore, the order closing the EP and making the attachment absolute also requires interference, as unless the EP is reopened, the order of attachment for Rs.76,00,000/- cannot be addressed. Both impugned orders thus require to be set aside and reopened.

There is a dispute of calculating the due amount, though it is challenged, in view of the due amount the order which arrived by the execution court and amount attached are varying, this Court is of the view that these are answered by this Court considering these factual aspects and then the trial Court can look into the dispute afresh. Thus, both CRPs i.e. C.R.P.No.6528 of 2017 and C.R.P. No.1801 of 2018, arising out of the orders dated 04.10.2017 and 12.09.2017, require consideration.

With the above discussion, in view of the circumstances and factual aspects, this court is of the view that, the order of attachment for Rs.76,00,000/- must be set aside, for the said condition, the closed EP has to be restored. Accordingly this court inclined to consider both the revision petitions. The factual aspects upon these orders, would require that, the execution court shall proceed with the E.P. afresh and adjudicate the claims and the Execution Court conduct fresh hearing, and decide the subject matter on merits, after hearing the contentions of both sides as to the rate of interest pursuant to the orders of the Hon’ble Apex Court. without being influenced by this court's findings. This court refrains from passing any finding as to the due amount as it is open to the execution court to adjudicate upon.

In the result, C.R.P. No. 6528 of 2017 and C.R.P.No.1801 of 2018 are allowed, with the following directions: