IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.S.APPA RAO CRP Nos.131 and 1182 of 2011 DT. 29–8-2011 CRP No.131/2011: Between: 1. Kankatala Subbarayudu (Died) and others. …Petitioners And 1. Kankatala Venkateswara Rao (Died) and another. … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.S. APPA RAO CRP Nos.131 and 1182 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice A.GOPAL REDDY) Since these two revision petitions arise one and the same common order, they are heard together and disposed of by this common order. These two revision petitions are preferred against the common order dt. 2-12-2010 passed in EP No.77/2005 and EP (SR) No.9362/2010 in AA No.1/2001 on the file of I Additional District Judge, East Godavari, Rajahmundry, respectively. Kankatala Venkateswara Rao, the first petitioner in EP No.77/2005 and Kankatala Subbarayudu, the first respondent in EP No.77/2005 are brothers. Kankatala Srinivasa Rao who is the son of Kankatala Venkateswara Rao is the second petitioner in EP No.77/2005. Kankatala Dhanalaxmi is the wife of Kankatala Subbarayudu and Kankatala Naga Durga Srinivasa Rao, Kankatala Veera Venkata Ramesh and Kankatala Venkata Satya Ramakrishna are the children of Kankatala Subbarayudu. They are arrayed as respondents 2 to 5 in EP No.77/2005. Both the families ie., Kankatala Venkateswara Rao and Kankatala Subbarayudu, owned and enjoyed certain properties. On raising disputes with regard to sharing of properties, they entered into an arbitration agreement on 24- 3-2001 to resolve the disputes with regard to possession and enjoyment of the immovable properties and sharing of income derived from out of the said properties. In furtherance of the arbitration agreement, by mutual consent, the parties appointed Sri M. Siva Suba Rao, an advocate and two others as arbitrators to resolve the disputes. The arbitrators passed an award on 9-9-2002 for effective division of the properties, in the following manner: “ (I) (a) Items II(a) and (b) of the schedule below be divided between Sri K.Venkateswararao and Sri K.Subbarayudu. (b) In such division the portion corresponding to the blue marked portion of the plan out of item II(a) and (b) annexed hereto be taken by Sri K.Venkateswararao towards his share, while the property shown and depicted in yellow colour in the said plan be taken by Sri K.Subbarayudu towards his share. (c) Sri K.Venkateswararao and Sri K.Subbarayudu shall execute and register a valid partition deed accordingly in respect of item (II). (II) An undivided ½ share in item I (a) to (d) of the schedule which is depicted in red colour in the plan annexed hereto be sold in auction as between party A and party B only. (a) The upset price and other terms of auction for the same are to be fixed at the time of auction. The highest bidder amongst party A and party B for this property shall pay the bid amount within 3½ months from the date of auction. (b) If the highest bidder fail to pay the offered amount within the time stipulated, he shall pay a sum of Rs.One Lakh as compensation to the opposite party. (c) In the event the highest bidder fail to pay the bid amount the possession of the property be taken over by the arbitrators and they shall deal with the matter afresh according to their best judgment. The compensation payable in terms thereof, shall be recovered by the party entitled to receive the same by executing this award, in the event the same is not paid by the other party and the undivided share of the defaulting party shall remain charged in favour of the other party entitled for recovery of the sum of Rs.One Lakh; in addition to securing a registered sale deed by executing this award through competent Arbitral court. (d) The amount of Rs.One Lakh payable as compensation shall carry interest at 12% p.a. from the date of default till it is paid or realized. (e) It is admitted that a sum of Rs.10,000/- is borrowed by K.Venkateswararao (Party A) offering his share in item (I) as security. Such liability and any other liabilities as may be identified shall be discharged by Venkateswararao only. Similarly any other liability contracted by either of the parties as against their share in the property be discharged by such party only. (III) Undivided half share in item (III) shall also be sold in auction as between the parties A and B only fixing the upset price and other terms at the time of auction. The defaulting bidder shall pay Rs.25,000/- as compensation to the other party. Time for payment for bid amount is three months from date of auction. All other conditions regarding consequences of failure, entitlement to recover by execution of the Award and interest etc. are as applicable to item (I) and stated in II (a) to (e) hereinabove. The Arbitrators while passing the award, as referred to above, observed as under: “On the basis of the statements of the parties and also of Kuna Veera Venkata Satyanarayana and estimate/ calculations of total quantity of paddy milled per month made on the basis of monthly electricity consumption (statement of calculations annexed), it is observed that party B could have realized a net profit of Rs.4000/- per month approximately commencing from 13-12-2000 from the rice mill in item (I) of schedule. The total profit realized by party B till the end of the month of August, 2002 is Rs.60,176/-. Party B shall therefore pay half of the same ie., Rs.30,088/- to Party A, within three months from now. If the payment is not made within such time the same can be recovered by Party A, together with interest 18% p.a., payable from the due date as mentioned, till realization. Later three EPs were filed, namely, EP No.57/2006 was for eviction of the respondents herein (judgment debtors) from the floor mill; EP No.78/2005 was seeking a direction to the respondents herein (respondents/judgment debtors in EP) to execute sale deed in terms of the award for rice mill which was item No.1; and EP No.77/2005 was to recover a sum of Rs.1,38,000/- including interest on Rs.1,00,000/- as awarded in clause 2 (d) of the award. The executing court by common order dt. 22-12-2008 ordered all the execution petitions directing settlement of terms in EP No.77/2005; directing the judgment debtors to execute necessary transfer deed in terms of the award in EP No.78/2005 and directing the delivery of schedule property in EP No.57/2006. Aggrieved by the same, three CRPs, namely, CRP Nos. 487/2009, 547/2009 and 486/2009 respectively were filed before this court. This court by common order dt. 2-12-2009 dismissed CRP No.486/2009 arising out of EP No.57/2006 and CRP No.487/2009 arising out of EP No.77/2005 and allowed CRP No.547/2009 arising out of EP No.78/2005. On dismissing CRP Nos.486/2009 and 487/2009, the decree holders filed EP (SR) No.9362/2010 under Order 21 Rule 32 CPC to direct the arbitrators to take possession of the E.P. schedule property and fix profits from the date of default till the date of delivery of vacant possession before the executing court. Since EP No.77/2005 which was filed for issuance of attachment warrant against the amount of Judgment Debtors to the credit of OS No.50/2006 on the file of V Additional District Court, Rajahmundry and send for the warrant amount to the credit of this EP and to realize the decretal amount of Rs. 3,65,120/- was ordered directing settlement of terms and against which CRP No.487/2009 was filed and the same was dismissed, the learned executing court took EP No.77/2005 and EP (SR) No.9362/2010 together for hearing and by its impugned common order dt.2-12-2010 while rejecting EP (SR) No.9362/2010 directed the judgment debtor to pay the amount covered under items 1 and 2 in the EP No.77/2005 @ Rs.2000/- per month from 1-9-2002 and after deducting Rs.3,00,000/- which was paid on 10-8-2010, the judgment debtor has to pay the remaining balance by 31-12-2010. Aggrieved by the order directing the judgment debtor to pay the amount of Rs.2000/- per month under items 1 and 2 in EP No.77/2005, CRP No.131/2011 is filed by the judgment debtors and aggrieved by the dismissal of EP (SR) No.9392/2010 the decree holders filed CRP No.1182/2011. We have heard the learned counsel for the revision petitioners in CRP No.131/2011 and respondents in CRP No.1182/2011 as well as the learned counsel for the respondents in CRP No.131/2011 and the petitioners in CRP Nmo.1182/2011. As per the award, under Cl. II (b), if the petitioners, who are highest bidders, fail to pay the offered amount within the time stipulated; they shall pay a sum of Rs. One lakh as compensation to the opposite party ie., decree holder. In the event the higher bidders ie., judgment debtors, fail to pay the bid amount, the possession of the property be taken over by the arbitrators and they shall deal with the matter afresh according to their best judgment. Further, the compensation payable in terms thereof, shall be recovered by the party entitled to receive the same by executing the award, in the event the same is not paid by the other party, Rs. One lakh payable as compensation shall carry interest at 12% per annum from the date of default till it is paid or realized. Therefore, award contains two parts, namely, the highest bidder on failure to pay the offered amount within the time stipulated, he has to pay Rs. One lakh as compensation to the opposite party and on failure to pay the amount, the arbitrators are entitled to take possession of the property and deal with the matter afresh according to their best judgment. The arbitrators in their award observed that party B (petitioners in CRP No.131/2011) could have realized a net profit of Rs.4000/- per month approximately, commencing from 13-12- 2000 from the rice mill in item (I) of schedule and the total profit realized by Party B till the end of the month of August, 2002 is Rs.60176/-. Party B shall pay half of the same ie., Rs.30088/- to party A (respondents in CRP No.131/2011) within three months. A perusal of the same would mean/show that party B shall pay Rs.2,000/- per month towards profit approximately. If the payment is not made, the same can be recovered with interest at 12% per annum. In that view of the matter, the learned executing court rightly accepted the calculations made in that regard and directed that the judgment debtor has to pay the amounts covered under items 1 and 2 at Rs.2,000/- per month from 1-9-2002 and after deducting Rs.3,00,000/- which was paid on 10-8-2010 the judgment debtor has to pay the remaining balance by 31-12-2010. In view of the same, no infirmity is discernible in the common order passed by the executing court in arriving the amount payable by the judgment debtor to the decree holder, warranting interference by this court. Both the Civil Revision Petitions are accordingly dismissed. There shall be no order as to costs. ____________________ A.GOPAL REDDY, J __________________ K.S.APPA RAO, J Dt. 29–8-2011 KMR