IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.Nos.4787 AND 4784 OF 2010 Date:29-03-2011 C.R.P.No.4787 OF 2010:- Between:- M/s.Sunny Enterprises, a proprietory concern, rep.by its Proprietor Sri Manjeet Singh and another .. Petitioners/JDRs And M/s. Mahaveer Marketing, rep.by Sri Paresh Dhanji Chadda and others. .. Respondents/DHRs And C.R.P.No.4784 OF 2010:- Between:- M/s.Sunny Enterprises, a proprietory concern, rep.by its Proprietor Sri Manjeet Singh and another .. Petitioners/JDRs And M/s.Mahaveer Marketing, rep.by Sri Paresh Dhanji Chadda and others. .. Respondents/DHRs COMMON ORDER:- Both the Civil Revision Petitions arise out of the common order passed by the Second Additional Senior Civil Judge, City Civil Court, Hyderabad in E.A.Nos.418 of 2005 and 419 of 2005 in E.P.Nos.85 of 1997 and 120 of 2005 in O.S.No.835 of 1993 respectively. 2. The revision petitioners are the judgment debtors. The suit O.S.No.835 of 1993 was filed for recovery of amount due under some transactions for the amount and an ex parte decree was passed on 18- 01-1996. Thereafter, E.P.No.85 of 1997 was filed for arrest of the judgment debtors under Order XXI Rules 37 and 38 C.P.C. and E.P.No.120 of 2005 was filed for attachment of the immovable properties and realization of the decretal amount. When the execution petitions are pending, E.A.No.418 of 2005 was filed in E.P.No.85 of 1997 and E.A.No.419 of 2005 was filed in E.P.No.120 of 2005 under Section 47 C.P.C. read with 151 C.P.C. to declare the judgment dated 18-01-1996 as null and void and inexecutable. 3. The substance of the affidavit in support of the applications says that there was no proper description of the defendants and the judgment debtors 2 and 3 are no way concerned with the judgment debtor No.1. The defendants appeared through the Advocate and during the proceedings, the entire amount was paid as per the accounts submitted below either by way of pay orders or cheques drawn on Syndicate Bank, King Koti, Hyderabad and Corporation Bank, Badi Chowdi Branch, Hyderabad. The plaintiff promised to withdraw the suit and as the judgment debtors were under the bonafide impression that the suit will be withdrawn, no written statement was filed and the suit was not contested and the amounts were paid even prior to the ex parte decree. Therefore, the decree was obtained by suppression of the satisfaction of the suit amount and by fraud. An application for condonation of the delay and setting aside the ex parte decree were filed and they were dismissed but however, since the decree is obtained by fraud, the judgment debtors have got a right to file this application and the E.P. is not maintainable. No amount is due to the decree holder and the simultaneous execution is barred. The payments are reflected as per the account below: S.No. Cheque/ Date Amount Pay Order No. 01. 749600 22.09.1992 2,58,196.00 02. 749598 05.10.1992 4,15,170.00 03. 756986 24.12.1992 1,35,650.00 04. 756987 24.12.1992 2,58,196.00 05. 758601 04.01.1993 1,69,782.00 06. 231083 08.09.1993 10,00,000.00 07. 231082 08.09.1993 5,00,000.00 08. 232517 12.10.1993 10,00,000.00 09. 1929 30.06.1994 15,00,000.00 10. 3441 20.12.1994 7,50,000.00 11. 3475 23.12.1994 7,50,000.00 12. 0650121/1796 22.09.1995 6,00,000.00 13. 0650122/1797 22.09.1995 4,00,000.00 14. 0650137/1812 22.09.1995 12,50,000.00 15. 286121 01.09.1995 9,00,000.00 16. 286180 21.09.1995 17,907.50 17. 0650707/44 12.01.1996 8,40,000.00 18. 0650728/55 13.01.1996 7,93,000.00 ----------------------------- Total 1,14,55,731.50 ----------------------------- 4. The decree holder has filed a counter affidavit denying the payment of the entire amount and also the promise said to have been made for withdrawal of the suit. In fact, in I.A.No.842/93, an application under Order XXXVIII Rule 5 C.P.C., the judgment debtors have denied any relationship but now came up with a different plea. No application under Section 47 C.P.C. is maintainable. The payments are not certified. Therefore, the applications are liable to be dismissed. 5. Both the applications were coupled together and on behalf of the petitioners, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-5 and through the evidence of P.W.2, Ex.X-1 is said to have been marked. On behalf of the decree holder, D.W.1 is examined and no documents are marked. 6. After considering the material on record, the learned Senior Civil Judge dismissed the applications and aggrieved by the said order, the present revisions are filed. 7. The point that arise for consideration is: Whether the decree holder had obtained the decree by fraud and the payments pleaded by the judgment debtors are true and the suit amount was satisfied? 8. At the outset, it is to be mentioned that a contention was raised that the application under Section 47 is not maintainable in view of the fact that the application to condone the delay to set aside the ex parte decree was dismissed and that memo was rejected by the lower Court and as against that, C.R.P.No.5532 of 2006 was preferred to the High Court and this Court found in its order, dated 05.08.2008, that a special enquiry is required to be conducted with regard to the fraud and the discharge pleaded by the judgment debtors and therefore, the objection about the maintainability of the applications does not survive for consideration. Furthermore, the decree holder has filed E.A.No.25 of 2008 before the lower Court to dismiss these applications and that application, at the instance of the decree holder, was dismissed. 9. The main contention of the judgment debtors is that towards the suit amount, several payments have been made even during the pendency of the suit and the decree holder has promised to withdraw the suit and failed to do so and suppressed the truth and obtained an ex parte decree. Therefore, the claim of the judgment debtors is that the decree is vitiated by fraud and there was satisfaction of the suit amount. When such is the plea, evidently, the burden is on the judgment debtor to prove the same. The revision petitioners have to prove the payments and also the representation made by the decree holder about the promise to withdraw the suit. The burden is definitely heavy on the judgment debtors and the evidence expected to be adduced by the judgment debtors should be clear, unambiguous and the only point to the satisfaction of the decretal amount. In this case, as already stated in the affidavit, the particulars of payment was as per the statement. During the enquiry, Exs.A-1 to A-5 were marked. Before considering this aspect, as rightly pointed by the learned counsel for the revision petitioners, though P.W.2 was examined, the lower Court has not considered that evidence or Ex.X-1. Therefore, this Court has to consider the same. According to the evidence of P.W.1, Ex.A-1 is the statement of account of the decree holder maintained by the judgment debtors for the years 1990 to 1995. Anyway, this account does not bear the signature of the decree holder about receipt of any amount or document. Ex.A-2 is said to be the certificate issued by the Syndicate Bank dated 14.03.1998 relating to the cheques and pay orders obtained by the judgment debtors in favour of the decree holder. Ex.A-3 is another such letter given by the Syndicate Bank. Ex.A-4 is the certificate issued by the Corporation Bank and this certificate is sought to be proved by the evidence of P.W.2, which was incidentally not considered by the lower Court. Ex.A-5 is said to be the income tax returns of P.W.1 and according to the lower Court, these payments were not reflected and therefore, it is not at all helpful. The lower Court came to the view that the payments pleaded by the revision petitioners are not proved. 10. Evidently, the statement of account relied on by the revision petitioners is maintained by them. If any cheque was issued to the third party, then, there will be a corresponding entry of encashment in the accounts and the person who gave the cheque. It is to be noted that there is no evidence of any nature to show that the cheques or the pay orders said to have been drawn or given by the revision petitioners were in fact received by the decree holder and they were encashed. To prove the positive fact of receipt of the amount, the judgment debtors have to summon the accounts of the decree holder and show as to whether the cheque or pay order was presented and who has encashed it. It is not very difficult for the revision petitioners to adduce such evidence. Merely revision petitioners claim to have signed on some cheques and issued the same it has no bearing. In fact, the evidence of P.W.2, which was not considered by the lower Court, relates to the transaction dated 01.09.1995 for a sum of Rs.9,00,000/- which is a pay order and also the pay order dated 20.09.1995 for Rs.17,907.50ps. In fact, P.W.2 has produced the accounts of the judgment debtor only. His evidence does not show that the pay orders were encashed by the decree holder and the money was received by the decree holder. Therefore, the evidence of P.W.2 is also of no avail. It is to be further noticed that the suit was filed in the year 1993 and there is nothing on record to show that during the pendency of the suit, and before the alleged promise, the judgment debtors have brought to the notice of the Court about the payments prior to the institution of the suit. On the other hand, it is the plea of the decree holder that instead of pleading the payments towards the suit debt prior to the institution of the suit, the revision petitioners are said to have taken a plea that there is no relationship of any creditor or debtor and there is no liability. In fact, this fact was not contraverted in any of the proceedings. Therefore, it is quite clear that the revision petitioners have failed to prove the payment or the fraud pleaded by them. Consequently, the objection about the executability of the decree and the satisfaction cannot be sustained. 11. The revision petitioners were made to show that simultaneous execution petitions are not maintainable and this contention is beyond the scope of enquiry in these applications. It is to be noted that in spite of the repeated contention of the decree holder about the falsity of the claim of the revision petitioners and even in spite of the fact that the delay condonation petition to set aside the ex parte decree from the same grounds was negatived by the Court, the standard of evidence adduced by the revision petitioners is wholly insufficient to prove any of the ingredients under Section 47 C.P.C. I do not find any infirmity or illegality in the orders of the lower Court and both the revisions deserves to be dismissed. 12. Accordingly, the Civil Revision Petitions are dismissed with costs. ____​________________________ N.R.L.NAGESWARA RAO, J 29th March, 2011 AMD THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.Nos.4787 AND 4784 OF 2010 Date: 29-03-2011 AMD