The State Bank of Hyderabad, Kollapur Branch vs Varadharajula Jaapathy Rao

L. Narasimha Reddy, J.—This is a revision filed by the decree holder in O.S. No.98/81 on the file of the Junior Civil Judge, Kollapur against the order dated 13/10/1999 made in EA No.7/99.

The petitioner filed O.S. No. 98/81 for recovery of Rs.7,954/- from the respondent herein and others. The suit was decreed on 24.2.1982 and the decree became final. It appears that the petitioner filed E.P. No.37/1986. Since, the petitioner could not recover any amount from the judgment debtor, the E.P. itself came to be closed. Subsequently, the petitioner filed E.P. No.35/93 under Order 21 Rule 37 of C.P.C. for arrest of the respondent herein and another who happened to be the judgment debtor No.4. The Executing Court through its order dated 4.1.1997 dismissed the E.P. against the respondent herein on the ground that he is not residing within the jurisdiction of that Court. So far as the other judgment debtor is concerned, the E.P. was allowed. It appears that since the other judgment debtor paid Rs.4,089/- further steps against him were dropped.

In the meanwhile, after dismissal of the E.P., the Government of A.P. appears to have made some deposits into the petitioner bank, in respect of the lands belonging to the respondent in pursuance of a settlement in the Lok Adalat. The petitioner filed E.A. No.7/99 in E.P. No.35/1993 for attachment of the amount of Rs.12,267/- lying to the credit of the respondent covered by the bond issued by the Government. The respondent resisted the E.A. on two grounds. The first plea was that in-as-much-as the E.P. No.35/93 was dismissed against him on 4.1.1999, the filing of application in E.A. No.7/1999 was not tenable. The second objection was that the amount covered under the bond was exempt from attachment as per the scheme framed by the Government in G.O. Ms. No.234, Irrigation and CAD (Project Wing-TGPH) Department, dated 15.10.1993. The Executing Court accepted both the pleas and dismissed the E.A. Hence, this revision petition.

Sri Mahipathi Rao, learned counsel for the petitioner submits that the view taken by the court below that when the E.P. stood dismissed the E.A. could not have been maintained is not correct. According to him, the dismissal of the E.P. could only be treated as a refusal to order arrest of the respondent and nothing more. As far as the second contention, namely, non-attachability of the amount is concerned, he submits that G.O. Ms. No.234, dated 15.10.1993 cannot be treated as law within the meaning of Section 60(o) of Civil Procedure Code.

Sri. K. Somakonda Reddy, learned counsel for the respondent on the other hand submits that with the dismissal of E.P. nothing remained on record and the filing of E.A. No.7/99 in that E.P. was incompatible. So far as the G.O. is concerned, he submits that the relevant provision under C.P.C. does not stipulate that the law referred to therein should be either the one enacted by the Parliament or Legislature of a State.

So far as the first contention is concerned, it has to be seen that E.P. No.35/93 was filed under Order 21 Rule 37 of C.P.C. The only relief claimed therein is for arrest of the judgment debtor. No other relief was contemplated in it. That relief was rejected by the Executing Court through its order dated 4.1.1999 against the respondent for the reasons stated therein. One can understand if a larger relief or an alternative relief was sought in the E.P. and only one of the several reliefs was rejected. For instance, if the E.P. was for sale of some property, further and ancillary reliefs such as attachment of the property can be sought. If one such ancillary relief is reused by the Executing Court, that by itself would not put an end to the E.P. The E.P. still survives and the decree holder can take such steps as are open to him. However, if the relief in the E.P. is for arrest of judgment debtor and if the same is rejected, nothing survives in the E.P. When the Executing Court in clear terms held that the E.P. is dismissed against the respondent herein, it is too difficult to imagine that the E.P. would still continue on the file of the court, vis-a-vis, the respondent herein. Therefore, the finding of the Executing Court in this regard is correct and it does not call for any interference.

In view of my finding on the first aspect, it is not necessary to consider the second aspect, namely, whether G.O. Ms.No.234, dated 15.10.1993 can be treated as law within the meaning of Section 60(o) of C.P.C. for the purpose of seeking attachment of the amounts covered by the bond issued under the scheme referred to above. This question, however is left open to be decided in appropriate case. Accordingly, the revision petition is dismissed without costs.