THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.1698 OF 2009 AND REVIEW CIVIL MISCELLANEOUS PETITION No.7536 OF 2009 Dated:08.07.2010 CIVIL REVISION PETITION No.1698 OF 2009 Between: Sesha Maa IBP Gas Agency, H.No.10-4/2, Shop No.3, Near Munsiff Court, Gajwel (V) And (M), Medak District, Rep., by its Manager .. Petitioner/Judgment Debtor And Kamuganti Satyanarayana .. Respondent/Decree holder REVIEW CIVIL MISCELLANEOUS PETITION No.7536 OF 2009 Between: Kamuganti Satyanarayana .. Petitioner And Sesha Maa IBP Gas Agency, H.No.10-4/2, Shop No.3, Near Munsiff Court, Gajwel (V) And (M), Medak District, Rep., by its Manager .. Respondent COMMON ORDER: Heard Sri M.Pratap Singh, learned counsel for the revision petitioner, and Sri J.Seshagiri Rao, learned counsel for the review petitioner. The factual background for the dispute is that the revision petitioner had undertaken before the Lok Adalat in a reference of O.S.No.191 of 2008 on the file of the Junior Civil Judge’s Court, Gajwel, Medak District that it will supply gas cylinders to the advocates of Bar Association of Gajwel including the plaintiff within one week from the date of booking, depending on the supply of cylinders by the Company, by way of door delivery at Gajwel. The undertaking was made a part of the award passed on 29.01.2009 and the plaintiff filed E.P.No.3 of 2009 in O.S.No.191 of 2008 alleging that after the disposal of the matter by Lok Adalat passing an award in terms of the compromise, he booked a gas cylinder on 31.01.2009. But, the Manager of the revision petitioner failed to supply the gas cylinder as per the award. The same is true in respect of the other advocates also in spite of receiving the gas cylinders from the Company and, hence, the plaintiff desired that the Manager of the revision petitioner be detained in civil prison, his movable property be attached and sold and compensation of Rs.25,000/- be awarded. In pursuance of the Execution Petition, the Junior Civil Judge, Gajwel had issued a warrant of attachment of movable properties specified as a Colour Television, a Computer, a Sofa, four tables, ten chairs and ten gas cylinders. The revision petitioner filed a counter before the executing Court contending that the decree is inexecutable being opposed to the provisions of the Essential Commodities Act, 1955. The revision petitioner also denied the plaintiff ever placing an order for supply of cylinder on 31.01.2009 and the absence of specification of any serial number by the plaintiff itself shows that no such booking would have been made. The revision petitioner claimed that he never violated or disobeyed the decree as per the award. The revision petitioner approached this Court against the warrant of attachment of movable property contending that the award itself is not maintainable in law and the executing Court passed an order without noting that any supply of gas cylinders to the customers depends on the supply of the same by the company. The movable properties sought to be attached belong to the gas Company and as the computers contain the data information of the consumers of Gajwel and the surrounding villages, the attachment is putting all the customers to lot of inconvenience. The revision petitioner, therefore, desired the order to be reversed. On 30.10.2009, the learned counsel for the revision petitioner made a representation that the gas cylinder was supplied to the respondent in the revision petition as directed by the decree and nothing survives to be executed and the said submission was admitted by the then learned counsel for the respondent stating such admission to be on instructions. Consequently, the attachment order was directed to be raised and the execution petition was directed to be closed and the movable properties of the revision petitioner were directed to be returned under proper acknowledgment. Against the closure of the Civil Revision Petition, as per the said orders, the review petitioner had come up with this petition claiming that fraud was played on the Court by representing to have supplied the gas cylinder, without supplying the same and he did not give any instructions to his former counsel to admit any supply of gas cylinder. The review petitioner, therefore, desired that the earlier order be set aside. The point for consideration is whether the impugned order dated 30.10.2009 in the Civil Revision Petition is to be reviewed and, if so, whether the impugned order challenged in revision has to be interfered with. POINT:- In the grounds for review in this petition and also in the affidavit filed in support of C.M.P.No.7537 of 2009 to suspend the impugned order sought to be reviewed, the review petitioner has contended that what was reported to this Court by the earlier counsel was not factually true and he gave no instructions to his counsel to report in such manner to the Court. It was interesting to note that the review petitioner also is an advocate of sufficient standing and any deep probe into the presence or absence of instructions for the earlier counsel for the review petitioner in admitting the submissions made by the learned counsel for the revision petitioner on 30.10.2009 will be a delicate matter, the result of which will cast a shadow on the professional integrity of either of the persons involved whatever be the result. For the purposes of dealing with the revision petition or review petition, I do not consider it necessary to undertake such an exercise and feel that in the interests of justice, the Civil Revision Petition itself be decided on merits. As there is an expression of want of confidence in the earlier counsel by the review petitioner, without going further into the conflicting claims, the order be permitted to be reviewed under the above circumstances. Coming to the merits of the revision petition, the award in question peculiarly did not appear to contain any positive direction against either party and had recorded the undertaking by the revision petitioner to supply the cylinders as specified in the award. The review petitioner claimed in the affidavit in support of the execution petition about non-compliance with the undertaking, while the revision petitioner stated in his counter affidavit about due compliance with the undertaking. Both the statements are oath against oath and it is also seen from the undertaking recorded by the award that the supply to be made is dependent on the supply of cylinders by the Company and a time limit of one week from the date of booking was also stipulated for the supply. The award which is made a decree of the civil Court appears ex facie not to answer any specific description of the nature of the decree covered by the relevant Rules under Orders XX or XXI of the Code of Civil Procedure and it is to be decided whether it has to be construed as a decree for delivery of movable property within the meaning of Order XX Rule 10 of the Code of Civil Procedure and is capable of execution as such under Rule 31 of Order XXI of the Code of Civil Procedure or any other specific provisions of the Code of Civil Procedure. If it is construed to be a decree of such nature as is capable of execution under any specific provision of the Code of Civil Procedure, then the Executing Court has to first determine whether the undertaking was violated and only in the event of its holding that the revision petitioner had violated the undertaking, it can proceed to act further under the relevant provisions of Order XXI whichever are applicable and no such determination of the liability of the revision petitioner to be subjected to such execution appears to have been made by the Executing Court before order of attachment of the movables in question. The claim of the revision petitioner that such of the movable properties as covered by the Essential Commodities Act could not have been attached in execution in the light of the provisions of the Essential Commodities Act also appears to have not been decided by the Executing Court. Therefore, the matter has to go back for determination of such questions and the alleged supply of the gas cylinder by the revision petitioner to the review petitioner as directed by the decree as reported on 30.10.2009 will also be obviously part of such enquiry by the Executing Court. Therefore, the order of attachment under revision has to be set aside and the matter has to be remitted back to the Executing Court accordingly. Accordingly, the Review C.M.P.No.7536 of 2009 is allowed and the order passed in C.R.P.No.1698 of 2009 on 30.10.2009 is set aside. The Civil Revision Petition No.1698 of 2009 is allowed. The attachment of movable properties of the revision petitioner under the warrant dated 13.02.2009 is set aside and if any movable properties were attached and are under the custody of the Executing Court, they shall be forthwith returned to the revision petitioner under proper acknowledgment. E.P.No.3 of 2009 in O.S.No.191 of 2008 is remitted back to the Court of the Junior Civil Judge, Gajwel, for enquiry and determination on merits in accordance with law, after giving every reasonable opportunity to both parties, as to whether the undertaking recorded in the award in O.S.No.191 of 2008 on the file of the Junior Civil Judge’s Court, Gajwel, by the Lok Adalat on 29.01.2009 has been complied with or violated and, if violated, under what provision of law and in what permissible mode the undertaking recorded by the award should be enforced or executed and proceed thereafter in the Execution Petition accordingly as per law. The parties shall bear their own costs. ___________________ G. BHAVANI PRASAD, J 08.07.2010 KH