THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 5377 of 2008 Date of order: 8.7.2010 Between: P. Subbarami Reddy …Petitioner and Nellore Balakrishna Reddy and others ...Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 5377 of 2008 ORDER: The petitioner-plaintiff filed a suit in OS No. 5 of 1986 in the court of the Subordinate Judge, Kovur, Nellore district for specific performance of an agreement of sale and it was dismissed on 13.3.1989, but a decree for refund of earnest money with interest was granted. First appeals carried by the defendants as well as by the plaintiff were dismissed on 29.12.1999. The plaintiff carried the matter in LPA No. 154 of 2000 and a Division Bench of this Court dismissed the said LPA by judgment dated 18.9.2007 and as per the directions of the Division Bench in the said LPA, the amounts lying in deposit in the court in pursuance of the interim orders were allowed to be disbursed to the respondents. Accordingly when the respondents i.e., the defendants initiated proceedings for withdrawal of the said amounts, the plaintiff who is the petitioner herein filed an execution petition on 14.11.2008 vide CF No. 3031 of 2008. The said EP was returned by the court below with an endorsement that “as per the orders in LPA No. 154 of 2000, the respondents are entitled to the amounts and as such how the EP is maintainable at the instance of the plaintiff”. Aggrieved by the return of the EP, the present revision petition is filed by the plaintiff. Heard both sides. The decree in OS No. 5 of 1986 is to the following effect, “That the plaintiff is entitled for reimbursement of money paid by the plaintiff to the third defendant under Ex.A5 and subsequent interest is at 9% P.A. from the date of agreement till the date of decree and at 12% P.A. thereafter.” The said decree remained undisturbed and confirmed in AS Nos. 940 of 1989 and 2153 of 1991, dated 29.12.1999. An LPA was carried by the plaintiff only and not by the defendants. Since the decree of the trial court has attained finality, I am of the view that the plaintiff is entitled to recover the amount of earnest money as mentioned therein. Similarly the amounts deposited by the plaintiff pending LPA was directed to be refunded to the respondents by the Division Bench in LPA and obviously the respondents are entitled thereto. Thus the claim of the petitioner-plaintiff as well as the claim of the respondents being of two different categories of amounts, there is no impediment for the petitioner-plaintiff to maintain the EP. The learned counsel for the respondents contends that only the third defendant is liable to pay the amount to the plaintiff, whereas the learned counsel for the petitioner states that a reading of the decree does not support the said contention. In any case, I am of the view that the court below was not justified in returning the EP unentertained. The Court below is, therefore, directed to entertain the EP, number the same and after giving opportunity to the respondents, decide the question raised as above and pass appropriate orders in accordance with law. The order of stay with regard to withdrawal of the amounts under cheque petition by the legal representatives of the third defendant is operating pending the revision petition Till the court below adjudicates on the said aspect as above, the said interim order would continue to operate for a period of three months from today and in the meanwhile the executing court shall pass appropriate orders in accordance with law and any directions regarding withdrawal shall abide by the orders of the executing Court. The revision petition is accordingly disposed of. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 8.7.2010 KR