IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY SEVENTH (27TH) DAY OF JULY, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.920 of 2010, C.R.P.No.1218 of 2010, C.R.P.No.1474 of 2010 & C.R.P.No.1627 of 2010 CRP No.920 of 2010: Between: M.Kiran Kumar … Petitioner/7th JDr And: Vizianagaram Chits (P) Ltd., rep. by its Foreman-cum-Managing Director, Vizianagaram … Respondent/DHr CRP No.1218 of 2010: Between: M.Kiran Kumar … Petitioner/7th JDr And: Vizianagaram Chits (P) Ltd., rep. by its Foreman-cum-Managing Director, Vizianagaram & others … Respondents CRP No.1474 of 2010: Between: Motamarry Ravindra Kumar … Petitioner/8th JDr And: Vizianagaram Chits (P) Ltd., rep. by its Foreman-cum-Managing Director, Vizianagaram & others … Respondents CRP No.1627 of 2010: Between: Motamarry Ravindra Kumar … Petitioner/8th JDr And: Vizianagaram Chits (P) Ltd., rep. by its Foreman-cum-Managing Director, Vizianagaram & others … Respondents SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.920 of 2010, C.R.P.No.1218 of 2010, C.R.P.No.1474 of 2010 & C.R.P.No.1627 of 2010 COMMON ORDER: CRP No.920 of 2010 is directed against the docket order dated 02.02.2010, CRP No.1474 of 2010 & CRP No.1627 of 2010 are directed against the docket order dated 02.03.2010 in un-numbered EAs, and CRP No. 1218 of 2010 is directed against the order dated 01.02.2010 in E.P.No.56 of 2008 in OS No.14 of 2003, respectively, on the file of the Senior Civil Judge, Vizianagaram, wherein the said applications filed under Order IXX Rule 1 CPC and under Order XXI Rule 26 and Section 151 CPC respectively, were rejected, and E.P. filed Order XXI Rule 37 read with Sections 51 and 55 CPC, was allowed. 2. Heard the learned counsel for the petitioner-7th JDr in CRP Nos.920 and 1218 of 2010 and the learned counsel for the petitioner-8th JDR in CRP Nos.1474 and 1627 of 2010 and the learned counsel for the first respondent-plaintiff. Perused the record. 3. As all the revisions arise between the same parties in the execution petition, they are all heard together and are being disposed of by this common order. 4. The first respondent herein-plaintiff filed suit OS No.14 of 2003 for recovery of certain amount due and the suit was decreed on 14.11.2007. It is not disputed that the said decree and judgment have become final. The first respondent herein filed E.P.No.56 of 2008 for realization of a sum of Rs.4,06,773/- due under the decree including suit costs, under Order XXI Rule 37 CPC seeking arrest of the JDrs 2, 7 to 9 and their detention in civil prison on the ground that in spite of having sufficient means, the JDrs were deliberately avoiding and neglecting to pay the decree amount. The 7th JDr [petitioner in CRP Nos.920 and 1218 of 2010] entered appearance in the E.P. through counsel and the 2nd JDr filed counter and contested the E.P. When the matter was coming up for enquiry, 7th JDr remained ex-parte. One witness was examined on behalf of the Decree-holder and he was cross-examined by the learned counsel for the 2nd JDr. No evidence was adduced on behalf of the 2nd JDr or any other JDrs. Taking into consideration of the testimony of PW.1, EP was allowed and arrest warrant against the JDrs 2 and 7 to 9 was ordered to be issued by order dated 01.02.2010 holding that the JDrs 2, 7 to 9 did not pay the decree amount, though they are having sufficient means and capacity to pay the same and they are willfully neglecting and therefore, they are liable for arrest. On the next day i.e., 02.02.2010, the 7th JDr filed application under section 151 CPC seeking reopening of the evidence of the decree-holder and permit the 7th JDr to cross-examine, on the ground that he could not cross-examine PW.1 on 27.01.2010 as he fell sick and therefore could not attend the Court and his counsel was engaged in some other Court when the matter was called and therefore, he was set ex- parte. The said application was rejected by the executing Court on 02.02.2010 on the ground that the E.P. itself was disposed of on 01.02.2010 on merits. Aggrieved by the order dated 01.02.2010, 7th JDr filed C.R.P.No.1218 of 2010 and against the rejection order dated 02.02.2010, 7th JDr filed CRP No.920 of 2010. The applications filed by the 8th JDr under Order XXI Rule 26 and Section 151 CPC and under Order XXI Rule 106 and Section 151 CPC were rejected on 01.03.2010 on the ground that the main E.P. itself was disposed of on 01.02.2010. Against the said orders, the 8th JDr filed CRP Nos.1474 and 1627 of 2010. 5. Learned counsel for the first respondent raised preliminary objection to the effect that the revision petitions are not maintainable and the appeal alone lies under Order XLIII Rule 1 (ja) of CPC. Learned counsel for the petitioners however contends that the revision is maintainable, as the order in the main E.P. is not appealable. 6. E.P. is filed seeking arrest and detention in civil prison of the JDrs under Order XXI Rule 37 read with Section 55 CPC. The matter was posted for hearing on 21.01.2010, on which date, the matter came up for cross- examination of PW.1 by JDrs. On that day, both the JDrs 7 and 8 were absent and no representation was made on their behalf and so, they were set ex-parte. The learned counsel for the Decree-holder reported no further evidence and therefore, the decree-holder evidence was closed and the matter was posted to 2nd JDr’s evidence on 27.01.2010. The 2nd JDr reported no evidence on his behalf and so the evidence was closed. Subsequently by order dated 01.02.2010, E.P. was allowed and warrant of arrest was issued against the JDrs 2, 7 to 9. As per Section 104 CPC, an appeal shall lie from inter-alia an order under any of the provisions of the Code imposing fine or directing the arrest or detention in civil prison of any person, except where such arrest or detention is in execution of a decree. The order of arrest and detention passed in the E.P. on 01.02.2010 comes under exception contained in clause (h) of sub-section (1) of Section 104 CPC and therefore, such an order directing arrest or detention in execution of a decree is not appealable. Order XLIII Rule 1 states that an appeal shall lie from the orders mentioned below therein under the provisions of Section 104 and clause (ja), which was introduced by way of amendment by Act 104 of 1976 in respect of the order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI provided an order on the original application that is to say, the application referred to in sub rule (1) of Rule 105 of that order, is appealable. 7. In ‘Mahaboob Basha vs. T. Penchalaiah[1]’, this Court held that ‘unless an order under Rule 105 of Order XXI is appealable, the order passed under Rule 106 of Order XXI is not appealable and only a revision would lie’. It was further held that ‘the words ‘application under any of the foregoing rules’ in rule 105(1) are the key to understand Order XLIII rule 1(ja), which cannot be ignored’. 8. Order XLIII Rule 1 provides for filing of an appeal from the orders enumerated therein under the provisions of Section 104 and clause (ja) provides for appeal against the order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application referred to sub-rule (1) of rule 105 of Order XXI is appealable. The impugned application, in which the order under rule 105 of Order XXI is passed is the one filed under Order XXI Rule 37 seeking arrest and detention and it was the said application, which came up for hearing on the day fixed for hearing and in which, the revision petitioners-JDrs were set ex- parte. The said order of arrest and detention is not appealable in view of section 104, which is to be read in conjunction with Order XLIII rule 1. When the order passed in the impugned application referred to in Order XXI rule 105 is thus not appealable, the question of an appeal lying against the order rejecting the applications filed under sub-rule (1) of rule 106 of Order XXI CPC does not arise, in view of the clear language of clause (ja) of Order XLIII rule 1. It follows that the order rejecting the applications filed under rule 106(1) for setting aside the ex-parte order also does not lie. Though the said applications are filed under section 151 CPC, the same has to be treated as one filed under Order XXI rule 106(1) CPC. The civil revision petition is therefore, maintainable. 9. However, coming to the merits of the case, the grounds urged by the 7th JDr in the affidavit filed in support of the application is that on 27.01.2010 when the matter was posted for cross-examination of the decree-holder, he could not attend the court as he fell ill and his Advocate was engaged in some other Court and therefore, he was set ex-parte. In fact, when the matter stood posted for cross-examination of PW.1 by the JDrs 7 and 8 on 21.01.2010, as the JDRs 7 and 8 were absent and as there was no representation on their behalf, they were set ex-parte. On 21.01.2010 the decree-holder reported no further evidence and his side evidence was therefore closed and the matter was posted to JDrs evidence to 27.01.2010 The averments in the affidavit filed in support of the application shows that the JDrs were set ex-parte on 27.01.2010, as they were not ready to cross-examine PW.1, is patently incorrect and the prayer in the application that the ex-parte order dated 27.01.2010 be set aside is also misconceived as the ex-parte order was passed on 21.01.2010. The alleged sickness of the JDrs was on 27.01.2010. There is absolutely no reason or explanation forthcoming as to why the JDrs could not be present in Court on 27.01.2010 and cross-examine PW.1 for which purpose the matter stood posted on that day. Thus, the ground put-forward in the affidavit seeking to explain the absence of the JDRs on 27.01.2010 is totally irrelevant and there is no explanation at all for their absence on 21.01.2010. That apart, the plea of the 7th JDr that he fell sick remains totally unsubstantiated also, as no medical certificate is produced to show that he fell sick either on 21.01.2010 or on 27.01.2010. 10. The 8th JDr-petitioner in CRP Nos.1474 and 1627 of 2010 also did not file any medical certificate nor placed any material before the Court in support of his claim that during relevant time he went to Bangalore and there he was held up due to jaundice. The affidavit filed in support of the application does not offer any satisfactory explanation for the absence of the JDrs on the dates when the matter was posted i.e., 21.01.2010 or 27.01.2010. The executing Court has passed orders in E.P. on 01.02.2010 on merits. There are absolutely no grounds to interfere with the impugned orders passed by the executing Court. 11. In the result, all the civil revision petitions are dismissed. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 27.07.2010 bss [1] 2001(3) ALT 407