THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.3235 of 2011 Date of Order: —09—2011 Between: 1. V.K.Avadhani (died) per L.Rs. ..Petitioners and Indian Bank, Mogalrajapuram, Vijayawada rep. by its Chief Manager. ..Respondent The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No.3235 of 2011 Order: This revision by the legal heirs of the sole decree holder is against the orders of the II Additional District Judge, Vijayawada in E.P.No.73 of 2010 in O.S.No.62 of 2000, dated 04-07-2011. The legal heirs of the deceased—decree holder viz. V.K.Avadhani filed the above E.P. for recovery of the decretal amount towards professional fee payable to V.K.Avadhani in O.S.No.62 of 2000 stating that decree holder appeared on behalf of Indian Bank—judgment debtor in O.A.No.20 of 1995 on the file of Debts Recovery Tribunal, Bangalore filed for recovery of 4,56,56,515/- which was allowed and recovery certificate was issued on 15- 09-1995. Against the said certificate issued the borrower carried the matter in appeal before the Appellate Tribunal, Bombay in A.S.No.38 of 1996 which was allowed on 20-02-1997 and remitted the matter to the Tribunal for fresh disposal. On remand the matter was again allowed on 12-09-1998. Since the decree holder appeared both prior and after remand before the Debts Recovery Tribunal, he submitted a bill along with the letter dated 22-09-1995 towards his legal fee. As the said amounts were not paid he filed O.S.No.62 of 2000 before the II Additional District Judge, Vijayawada seeking to recover an amount of Rs.10,25,170/- being principal and interest thereon. Similarly, the decree holder claiming legal fees in the present suit filed two other suits which we are not concerned. The judgment debtor contested the claim contending that after Debts Recovery Tribunal disposed of proceedings earlier on 15-09-1995 and on remand by the Appellate Tribunal on 12-09-1998, no fresh fee was claimed other than the bill set up on 22-09-1995 and the suit filed by the decree holder was dismissed on 30- 06-2000 as barred by limitation. Further, as per the Circular dated 21-11- 1995 in all the proceedings before the Debts Recovery Tribunal a sum of Rs.30,000/- has been fixed as maximum fees which is to be payable to the counsel who appeared in the proceedings. Therefore, the decree- holder/plaintiff is not entitled to any amount over and above the said amount. Even as per Advocate Fee Rules, when the matter is disposed of ex-parte, it is only 50% of the fee as fixed, to which the decree-holder/plaintiff is entitled to and not more than that. The lower court after framing necessary issues, after leading evidence by the parties and after taking the oral evidence of decree holder, who examined as P.W.1, and Exs.A1 to A21 decreed the suit of the plaintiff. Aggrieved by the same the judgment debtor—bank filed A.S.No.1176 of 2002, which was allowed holding as follows: “Therefore, the appeals are partly allowed only for a decree of a sum of Rs.30,000/- (Rupees thirty thousand only) in favour of plaintiff as against the defendant and also for the balance amount out of the legal fee as shown in the decree to be payable by the defendant as and when the same is recovered either in execution of the Certificate issued by the Tribunal or by way of settlement with the debtors. However, there shall be no order as to costs.” On the death of decree-holder, his legal heirs/petitioners herein seeking clarification filed Rev.ASCMP No.1669 of 2006 in which the following order is passed: “Having heard for the counsels appeared for both sides and having regard to the facts and circumstances, we make it clear that the petitioners (DHRs.) are at liberty to take all such steps independently for recovery of the amounts to which they are liable, to be paid by the respondent (JDR) and the same shall be pursued independently uninfluenced by the directions mentioned in the last portion and it is also open to the respondents to contest the same. We further make it clear that any such steps taken by the petitioners (DHR) for recovery independently the same shall be disposed of in accordance with law.” After the said order has been passed and after Debts Recovery Tribunal allowing the claim of the judgment debtor—bank, the present E.P. has been filed by the L.Rs. of the decree holder for recovery of Rs.10,25,170/- plus interest of Rs.5,32,264.39 ps. from 03-06-2000 to 25-02-2010 at 6% per annum on the principal amount 9,15,330/-; total Rs.15,57,434.39 ps. with costs of the E.P. etc. The respondent/bank filed counter contesting the claim of the petitioner/decree-holder stating that without observing the orders passed by the High Court in appeals and Rev.ASCMP, the decree holders filed the execution petition with a dishonest intention and sought to attach movables even without issuing notice under Order XXI Rule 22 CPC, as EP is filed beyond 2 years from the date of decree. When the attachment of movables is sought to be effected, the decretal amount was deposited to the credit of E.P. by way of pay order without prejudice to the rights and contentions. Aggrieved by the attachment of movables, Bank carried the matter in revision —C.R.P.No.2107 of 2010 and this Court disposed of the revision directing the executing court to consider the objections of the petitioner—bank before payment of the amount deposited to the credit of the O.P. and the entitlement of the decree holder to the amount due in the light of the order passed by the High Court in appeal and modified in review petitions. The decree holder is entitled to the extent of Rs.30,000/- fixed in A.S.No.1176 of 2002 and the remaining amount payable only after recovery of the amount from the debtor which should be recovered either in execution of the certificate issued by the Debts Recovery Tribunal or by way of settlement with the debtors as such decree holder is not entitled for the whole amount as shown in the E.P. It is also stated that the recovery proceedings were initiated basing on recovery certificate in R.P.No.182 of 2002 in O.A.No.20 of 1995 with the Debts Recovery Tribunal, Visakhapatnam and E.P. is liable to be dismissed. The learned executing court after considering the various contentions advanced by the counsels closed the E.P. recording part satisfaction for Rs.30,000/- with a direction that the decree holders are entitled to withdraw the same and for the rest of the E.P. claim the decree holders are directed to take independent action as per the orders of the High Court. Questioning the same the present revision has been filed. Heard Sri D.Prakash Reddy, learned senior counsel for the petitioners and also Mr.P.Shiva kumar, learned counsel for the respondent— bank. Learned senior counsel contended that this court in the appeals preferred by the bank categorically held that fee certificate forms part of decree and the said amount is the one to be recovered from the adversary party, any amount which has been claimed towards the advocate fee over and above the limit prescribed under the Circular dated 21-11-1995, necessarily has to be paid to the respective counsel, who filed the certificate and certainly the bank is not entitled to retain the said amount, since they have no right to make claim over the amount. The bank having recovered the amount and settled the claim with the decree holder and also received a sum of Rs.34.63 lakhs from APSFC towards his share, it cannot retain the amount payable to the advocate. Once the bank recovered Rs.34.63 lakhs out of certificate amount of Rs.4,56,56,515/- granted by the Debts Recovery Tribunal, Bangalore, the decree holders are entitled to fee and they cannot be deprived of legal fee. Per contra, learned counsel for the respondent—bank sustained the order stating in view of the order passed by this Court the decree holder has to recover the amount independently but not by filing E.P. Admittedly, the appeals filed by the Bank against the decree in the suit were allowed partly on 10-02-2006 to the extent that there shall be only a decree for a sum of Rs.30,000/- in favour of the plaintiff as against the defendant and also for the balance amount out of the legal fee as shown in the decree to be payable by the defendant as and when the same is recovered either in execution of the certificate issued by the Tribunal or by way of settlement with the debtors. On the decree holder filing Rev.ASCMP No.1669 of 2006 in A.S.No.1176 of 2002 the High Court clarified that the petitioner—decree holder is at liberty to take all such steps independently for recovery of the amounts to which they are liable to be paid by the respondent/judgment debtor and the same shall be pursued independently uninfluenced by the directions mentioned in the last portion and it is open to the respondents to contest the same. Further, it was made clear that any such steps taken by the petitioners—decree holder for recovery independently the same shall be disposed of in accordance with law. As per the above clarification, the decree holder is entitled to Rs.30,000/- and the remaining fee shall be payable to the decree holder subject to recovery of the sum by the Indian Bank from the borrower/debtor either in execution of the certificate issued by the Tribunal or by way of settlement with the debtors. The same has been further clarified that the said recovery shall be pursued independently uninfluenced by the directions mentioned in the last portion of the judgment dated 10-02-2006. In view of the same, recovery of the legal fee will depend upon the Bank recovering the amount from the borrower. The bank recovered Rs.34.63 lakhs out of the sale certificate amount granted by the Debts Recovery Tribunal. Whether the said amount includes the legal fee payable to the petitioners etc. has to be decided independently by the court. Therefore, the petitioners are not entitled to recover the same by way of filing E.P, which depends upon the bank recovering the amounts from its borrowers. The lower court after taking into consideration both the orders passed by the High Court in appeals as well as Rev. CMP rightly closed the E.P. recording part satisfaction for Rs.30,000/- granting liberty to the decree holders to take independent action as per the orders of the High Court for the rest of the E.P. claim. The order passed by the lower court does not suffer from any illegality warranting interference. The Civil Revision Petition is accordingly dismissed at the admission stage. _________________ A.GOPAL REDDY, J. -09-2011 Murthy