Court’s Decision
The Andhra Pradesh High Court, presided over by Justice Ravi Nath Tilhari, dismissed a Civil Revision Petition filed by a judgment debtor challenging a notice issued by the Execution Court in a 2002 decree for possession. The Court found the revision not maintainable, held that the petitioner’s counsel misrepresented facts to obtain an urgent lunch motion, and imposed ₹25,000 costs to be paid personally by the counsel to the Andhra Pradesh High Court Legal Services Committee.
Justice Tilhari strongly emphasized that legal practice is a noble profession, observing:
“Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hallmark. Sincerity of performance and earnestness of endeavour are the two wings that will bear aloft the advocate to the tower of success.”
The Court reiterated that filing frivolous petitions and citing false urgency amounts to misuse of judicial process, warranting exemplary costs.
Facts
The petitioner was the judgment debtor (J.Dr.) in a long-standing dispute arising out of O.S. No. 623 of 2002 before the Principal Senior Civil Judge, Vijayawada. The trial court had decreed the suit on 8 December 2006, directing the defendant to vacate and hand over possession of the second-floor premises of the building to the plaintiff by 8 February 2007, failing which the plaintiff could recover possession through legal process.
Additionally, the petitioner was ordered to pay ₹8,128 as institutional costs, while bearing his own costs.
The petitioner had filed an appeal (A.S. No. 33 of 2007) against the decree, but it was dismissed for non-prosecution on 20 March 2023. Later, the decree-holder filed E.P. No. 73 of 2025 seeking execution of the decree. The Execution Court issued a notice dated 2 September 2025 to the petitioner to appear on 6 October 2025 and file objections, warning that failure to do so would lead to ex-parte proceedings.
The petitioner then approached the High Court under Section 115 of the CPC, seeking to set aside this notice. He claimed that his appeal restoration application (I.A. No. 3 of 2025) was still pending and therefore, the trial court decree was not final.
Issues
- Whether a Civil Revision Petition under Section 115 CPC is maintainable against a simple notice issued in execution proceedings.
- Whether the pendency of an application to restore a dismissed appeal prevents the execution of the trial court decree.
- Whether citing false urgency to obtain a lunch motion amounts to misuse of judicial process.
Petitioner’s Arguments
The petitioner argued that since his appeal restoration application was pending, the decree had not attained finality and therefore, the Execution Court could not issue notice. He submitted that the appeal was dismissed in default, not on merits, and hence the decree remained unconfirmed.
He also contended that the impugned notice failed to mention any legal provision, making it invalid. The petitioner asserted that execution proceedings without finality of decree were premature and without jurisdiction, and sought intervention from the High Court under its revisional jurisdiction.
Respondent’s Arguments
The respondent (decree-holder) opposed the revision, arguing that dismissal of an appeal for non-prosecution confirms the trial court’s decree, allowing execution to proceed. It was contended that mere pendency of an application for restoration does not operate as a stay of execution.
The respondent also highlighted that the impugned notice was only a procedural step, not a final order capable of being challenged under Section 115 CPC. The Execution Court merely directed the petitioner to appear and file objections, and no coercive action was initiated.
They further contended that the lunch motion was obtained by misrepresenting urgency, misleading the Court into believing that immediate possession was being taken when in fact, only a notice for objections was issued.
Analysis of the Law
The Court examined Order 41 Rule 17 of the Code of Civil Procedure, which governs dismissal of appeals for default. The Explanation to Rule 17 clearly states that if the appellant fails to appear, the appeal can only be dismissed for non-prosecution, not on merits.
The Court relied upon Ashwathamma v. Lakshmamma (2016) 16 SCC 615, wherein the Supreme Court held that even if an appeal is dismissed for default, the trial court’s decree stands confirmed. The same view was reiterated in Benny D’Souza v. Melwin D’Souza (2023 LiveLaw SC 1032), where the Apex Court emphasized that such dismissal operates as confirmation of the lower court decree, unless the appeal is restored.
Justice Tilhari clarified that mere pendency of a restoration application does not automatically stay execution. Under Order 41 Rule 5 CPC, a separate stay order is required; absent such an order, the decree-holder is entitled to execute the decree.
The Court further clarified that non-mention of the provision in the notice does not invalidate it, as long as the Execution Court has jurisdiction to execute the decree.
Precedent Analysis
- Ashwathamma v. Lakshmamma (2016) 16 SCC 615 – Held that dismissal of appeal for default does not decide it on merits, but the decree of the lower court remains effective until the appeal is restored.
- Benny D’Souza v. Melwin D’Souza (2023 LiveLaw SC 1032) – Reaffirmed that appeals dismissed for default confirm the decree and can be restored only upon sufficient cause.
- A.S. Traders v. M.G.R. Rice Industries (2025 SCC OnLine AP 3059) – Andhra Pradesh High Court stressed that advocacy is not a craft but a calling, requiring integrity and sincerity; misuse of process by counsel invites judicial censure.
These judgments guided the High Court in rejecting the petitioner’s arguments and condemning the misrepresentation of urgency as contrary to professional ethics.
Court’s Reasoning
The Court found the Civil Revision Petition not maintainable, holding that a notice for appearance and filing objections in execution proceedings is not a “case decided” within the meaning of Section 115 CPC. It was merely a procedural step.
Justice Tilhari reasoned that the petitioner’s proper course was to appear before the Execution Court and file objections rather than invoking the revisional jurisdiction of the High Court.
The Court also took serious note of the misrepresentation by counsel, who sought urgent hearing claiming that possession was being forcibly taken. Upon scrutiny, it was found that no such urgency existed—only a notice for appearance was issued.
Citing J.S. Jadhav v. Mustafa Haji Mohamed Yusuf (1993) 2 SCC 562, the Court reproduced the Supreme Court’s reflections on the ethical duties of advocates:
“A lawyer, without the most sterling integrity, may shine for a while with meteoric splendour; but his light will soon go out in blackness of darkness. The strictest principles of integrity and honour are his only safety.”
The Court emphasized that misuse of urgent listings through false representation damages the dignity of the Bar and the administration of justice.
Conclusion
The High Court dismissed the Civil Revision Petition and imposed ₹25,000 costs personally on the counsel for the petitioner, to be deposited within three weeks with the Andhra Pradesh High Court Legal Services Committee.
The Court directed the Registrar (Judicial) to ensure compliance and list the matter on 6 October 2025 for verification of payment. It observed that professional integrity forms the foundation of advocacy and that misuse of procedure corrodes public faith in justice.
Justice Tilhari concluded:
“Legal profession is a noble one; its members must set an example of conduct worthy of emulation. Misuse of process by counsel tarnishes that nobility.”
Implications
- Reiterates that Section 115 CPC cannot be invoked against procedural notices in execution proceedings.
- Clarifies that dismissal of an appeal for default confirms the trial court’s decree unless restoration is granted.
- Sends a strong message on professional ethics, warning advocates against misleading the court.
- Reinforces that false urgency petitions amount to abuse of process and will attract monetary penalties.
- Upholds the principle that the nobility of the Bar is inseparable from the integrity of the justice system.
