THE HON’BLE SRI JUSTICE R. KANTHA RAO C.R.P.No.4328 of 2010 Date:13.12.2010 Between: Allu Venkata Naidu ……….Petitioner/J.Dr. And Kalyampudi Venkata Siva Rama Prasad Naidu. ………Respondents/D.Hr.. THE HON’BLE SRI JUSTICE R. KANTHA RAO C.R.P.No.4328 of 2010 ORDER: Heard the learned counsel appearing for the revision petitioner/judgment debtor. None appears for the respondent/decree holder. The respondent decree holder obtained a money decree exparte against the petitioner/judgment debtor for an amount of Rs.1,50,851/- and subsequently filed E.P.No.6 of 2009 on the file of the Senior Civil Judge, Bobbili for realizing the decretal amount and seeking arrest & detention of the respondent in civil prison. However, in the meanwhile, the revision petitioner/J.Dr filed a petition under Order 9, Rule 13 CPC before the Court, which passed the decree to set aside the same and it was pending before the said Court. He also filed a petition to stay the execution proceedings in the Executing Court, but subsequently reasons best known to him, withdrew the said petition. The learned Executing Court, which had full knowledge about the pending of the petition filed under Order 9, Rule 13 CPC along with a petition filed under Section 5 of the Limitation Act to condone the delay in making the said application to set aside the exparte decree was pending, allowed the E.P., directed the arrest of the revision petitioner and his detention in civil prison by its order dated 25.8.2010. The said order is impugned in the present revision. Reliance has been placed by the learned counsel for the petitioner in V. Divakara rao and others v. V.Srinivasa Rao[1], wherein the learned Single Judge of this Court held that when the judgment debtor approached the court to set aside the exparte decree, further proceedings in E.P have to be set aside till the application is filed under Order 9, Rule 13 or petition filed under Section 5 of the Limitation Act is disposed of or for reasonable time. In the instant case also, the learned Executing Court in spite of knowledge about the pendency of the petition filed under Order 9, Rule 13 along with the petition filed under Section 5 of the Limitation Act for the purpose of setting aside the exparte decree passed against the revision petitioner, proceeded with the enquiry in the E.P., passed the impugned order, which is in my view is erroneous and is liable to be set aside. Since in this revision by holding that during pendency of the petitions filed under Order 9, Rule 13 and Section 5 of Limitation Act, the Executing Court ought not have disposed of the E.P and passed final order, I am not going into the merits of the order passed by the learned Executing Court in the E.P and it is not required. For the reasons aforementioned order dated 25.8.2010 passed by the Executing Court directing the arrest of the revision petitioner and his detention in civil prison is set aside. The Executing Court is directed to dispose of the E.P., after the applications filed by the revision petitioner under Order 9, Rule 13 C.P.C and Section 5 of the Limitation Act are disposed of or after affording such opportunity to him to get such petitions disposed of and if he fails to-do so, after a reasonable time recording appropriate reasons. The Civil Revision Petition is allowed. There shall be no order as to costs. _________________________ JUSTICE R. KANTHA RAO Date:13.12.2010 mrb [1] 2004 (5) ALD 626