HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE NOUSHAD ALI C.R.P.NOs.3399 AND 3682 OF 2010 Dt.2.9.2010 C.R.P.NO.3399 OF 2010 Between: A.B.Shankar Baba ..Petitioner And National Small Industries Corp. Ltd, Hyderabad and another ..Respondents C.R.P.NO.3682 OF 2010 Between: A.B.Shankar Baba ..Petitioner And D.Bali Chakravarthy and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE NOUSHAD ALI C.R.P.NOs.3399 AND 3682 OF 2010 COMMON ORDER: (Per Sri Justice V.Eswaraiah) Both the civil revision petitions are filed by the same petitioner against respondents and 2nd respondent – National Small Industries Corporation Limited, Hyderabad is common and the 1st respondent in C.R.P.No.3682 of 2010 is the auction purchaser of the house property. C.R.P.No.3399 of 2009 is filed against the order dated 8.4.2008 in E.A.No.14 of 2008 in E.P.No.35 of 2002 on the file of the XI Additional Chief Judge (FTC), City Civil Court, Hyderabad, in dismissing the application filed by the petitioner. The said application in E.A.No.14 of 2008 was filed under Section 5 of the Limitation Act seeking to condone the delay of 1555 days in filing the petition to set side the ex parte order dated 17.10.2003 passed in E.P.No.35 of 2002. The other C.R.P.No.3682 of 2010 is filed against the order, dated 8.4.2008 in dismissing application in E.A.No.13 of 2008 in E.A.No.67 of 2007 in E.P.No.35 of 2002 in the same court. The said application was filed under Section 151 C.P.C. not to confirm the delivery of possession till the disposal of the execution application. Heard the learned counsel for the petitioner. The case of the petitioner is that he is the owner of the house bearing No.7-2-1108 situated at Sanathnagar Industrial Housing Colony which was leased out and which was occupied by the tenants from 12.2.2008. The National Small Industries Corporation limited which is a Government of India enterprise extended financial scheme of supplying machinery on lease basis to Nitish Cascade Logistics Limited, one of the respondents herein, represented by its sole proprietor M.S.Prakash and for the said financial assistance the petitioner herein is guarantor for due payment of the amounts payable by the Nitish Cascade Logistics Limited as well as its proprietor M.S.Prakash. It is stated that the said advances were not repaid and cheques issued by them were dishonoured. Accordingly, as per lease agreement the dispute was referred to the arbitrator. The sole arbitrator issued notice to the respondents and the petitioner herein. In the said arbitration proceedings, respondents 1 and 2 did not participate and the 3rd respondent, who is petitioner herein himself appeared through counsel and filed a reply to the claim statement and further on contest of the petitioner herein alone the arbitration proceedings were passed holding that all the respondents therein are liable to pay a sum of Rs.14,15,648/- along with future interest at the rate of 18% per annum from the date of claim petition i.e., 17.4.2000 till the date of payment vide award dated 27.6.2001 of the sole arbitrator, namely, J.V.R.K.Sarma. As the awarded amount was not paid, the claimant filed E.P.No.35 of 2002 for realization of the decretal amount, interest and costs aggregating to Rs.20,17,519/- and in the said E.P. the property of the petitioner was attached by the bailiff. It is stated that after substituted service of notice, he was set ex parte on 5.12.2005 and the terms of sale were settled and initially the value of the property was shown as Rs.17,60,800/- and the value fixed by the court was Rs.10,00,000/- and thereafter offset price was reduced from Rs.20,00,000/- to Rs.16,00,000/-, which was knocked down in favour of auction purchaser for a sum of Rs.16,09,000/-. The petitioner filed E.A.No.14 of 2008 in E.P.No.35 of 2002 seeking to condone the delay of 1555 days in filing the petition to set aside the ex parte order dated 17.10.2003. The reasons stated to condone the said delay are, no notice had been served on him and had the notice been served, he would have complied with the decretal amount long back and if the E.P. is executed, the tenants and himself and his wife would be on streets. On verification of the records, he came to know that he was branded as guarantor to one M/s.Nitish Cascade Logistic Private Limited and deposited his property document with them and the Proprietor of the said Nitish Cascade Logistic Private Limited himself filed a criminal complaint before Kushaiguda police station for forged document which goes to show that he has not mortgaged the said property. Therefore, he seeks to condone the delay of 1555 days in filing the said application. A perusal of the affidavit does not disclose any reasons to condone the said delay. The petitioner has not specifically stated whether notice was served on him or not. Learned counsel for the petitioner placed a copy of the docket proceedings of the court below showing that the E.P. was filed in 2002 for a sum of Rs.20,17,519/-. Out of which, the original decretal amount is Rs.14,15,648/-, interest at the rate of 18% per annum is Rs.5,94,571/- and costs is Rs.200/-. The said E.P. was filed for executing the award under Order 21 Rules 54 and 64 C.P.C read with Section 36 of Arbitration and Conciliation Act, 1996 (for short, the Act) and sought for attachment of the property of the petitioner herein for sale and realization of the decretal amount. Notice was ordered on 15.11.2002 and again fresh notice were issued time and again on 27.2.2003, 21.3.2003, 18.4.2003, 17.6.2003 and 11.7.2003 and by order dated 12.9.2003 notice was issued through publication in daily newspaper and posted it to 17.10.2003. On 17.10.2003 publication was filed and the petitioner was called absent and there was no representation and hence he was set ex parte. The E.P. was allowed and warrant was directed to be issued. Thereafter, as per order dated 14.9.2005 sale papers checked and the proclamation of sale of immovable property is not as per prescribed amendment form as per Order 21, Rule 66 C.P.C and the petition was returned to file correct papers. Accordingly, a fresh petition was filed on 27.9.2005 and sale papers were checked and posted the matter for settlement of terms of proclamation by order, dated 21.10.2005. On 5.12.2005 the judgment debtor was called absent and the terms of sale were settled. Under Order 21, Rule 66 C.P.C before issuing proclamation of the property under attachment, the proclamation shall be drawn up after notice to the decree holder and judgment debtor and since notice was already issued to the judgment debtor by means of an order under Order 21, Rule 54 C.P.C., earlier when the house property was attached by the bailiff, no notice is necessary. In addition to the said proclamation, it was stated that the value of the attached property is Rs.7,60,800/- and the value fixed by the Court is Rs.10,00,000/- and the offset price is fixed at Rs.7,00,000/- and the proclamation of sale notice was published in Eenadu daily newspaper indicating that the sale would be conducted in the court premises on 24.1.2006. The proclamation of sale of the attached property was directed to be published in Eenadu daily newspaper on 25.1.2007 and for hearing on 15.2.2007. It appears that the sale could not be finalized and as per docket proceedings dated 15.2.2007 the offset price was fixed for Rs.20,00,000/- and the bidders who were present before the court expressed their inability to participate in the bid stating that the market value per Sq.yard is Rs.5,000/- to Rs.8,000/- only and therefore the offset price was reduced to Rs.16,00,000/-. The auction was conducted subject to result of any claim petition because the claim petition was dismissed and the claim petitioner filed an application to restoration of the claim petition along with limitation petition. As on the date, no claim petition is pending and the sale was knocked down in favour of Dasari Balichakravarthy, being the highest bidder for a a sum of Rs.16,09,000/- and the matter was directed to be called on 22.2.2007. Thereafter, the sale conducted on 15.2.2007 was confirmed by order, dated 19.6.2007 and the sale certificate was issued. After issuance of the sale certificate only, the application in E.A.No.14 of 2008 was filed on 18.2.2008 without showing any cause, much less sufficient cause for condonation of the delay of 1555 days. The said application was dismissed by order, dated 8.4.2008. Against which, C.R.P.No.3399 of 2010 has been filed. The other application in E.A.No.13 of 2008 was filed under Section 151 C.P.C. not to confirm the delivery of possession till the disposal of the execution application. The reason stated in the affidavit filed in support of the said application by the petitioner before the court below was that he has not received any notice in the E.P. and on verification he came to know that the arbitrator passed award for Rs.14,15,648/- and the court fixed the offset price of Rs.20,00,000/-, but reduced to Rs.16,00,000/- and the same was knocked down in favour of D.Balichakravarthy, but in fact the value of the property is Rs.60 lakhs and more and the decree holder and auction purchaser colluded with each other caused loss to the petitioner and he is prepared to deposit fifty per cent of the decree amount and proclamation charges. The said application in E.A.No.13 of 2008 in E.A.No.67 of 2007 in E.P.No.35 of 2002 was dismissed by separate order dated 8.4.2008. Against which, C.R.P.No.3682 of 2010 has been filed. A perusal of the orders impugned indicates that notice was issued in the E.P. and when the notice was returned, substituted service was ordered by publication of the notice in the newspaper and publication was made and thereafter only the petitioner was set ex parte by order dated 17.10.2003. The petitioner has not even stated in the petition as to when he was set ex parte. In the application filed under Section 5 of the Limitation Act he has stated that the said delay in filing petition to set aside the ex parte order dated 17.10.2003. The assertion of the petitioner that no notice was issued is incorrect. In fact, notice was issued and ultimately paper publication was made and in fact he contested the arbitration proceedings. In fact, the learned Additional Chief Judge while dismissing the application filed under Section 5 of the Limitation Act stated that when the notices were sent in the claim petitions they must have known of the said proceedings. But, for the reasons best known the petitioner did not choose to contest the E.P. for all these years and he has not assigned any reasonable grounds for the delay in filing the petition though he filed a petition to set aside the auction and he did not deposit the sale amount in court to show his bonafides. In so far as the application file under Section 151 C.P.C not to confirm the delivery of possession till the disposal of the execution application is concerned, it is stated that when sale notice was affixed on the said property in all probability the petitioner himself have been told by his tenant about the proposed sale of the property, but he never chose to contest the matter. As per Order 21, Rule 89 C.P.C the petitioner has to deposit the sale price together with 5% of purchase money as a condition precedent and admittedly the petitioner never came forward to deposit the 5% of purchase money as a condition precedent for maintaining the said application. In the instant case, no such deposit was made within 30 days from the sale as required under Order 21, Rule 92(2) C.P.C even at the time of filing of the said E.A. Therefore, the said application was dismissed. We have perused the orders impugned in both the civil revision petitions. We are of the opinion that the petitioner is not diligent and therefore it cannot be said that no notice is served on him. Therefore, we do not see any infirmity, legal or otherwise in the orders impugned. The civil revision petitions are accordingly dismissed. _________________ V.ESWARAIAH, J. _________________ NOUSHAD ALI, J. 2.9.2010 kpr