THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
CIVIL REVISION PETITION No.5779 of 2017
ORDER:
This revision is filed challenging the order dated 14.09.2017 in EP.No.28 of 2016 passed by the Junior Civil Judge, Cyberabad at Hayathnagar, whereunder an execution petition filed seeking eviction of judgment debtors No.2 and 3 was dismissed.
2. The petitioner/plaintiff instituted a suit in O.S.No.18 of 2008 on the file of the Junior Civil Judge, Cyberabad at Hayathnagar, seeking relief of perpetual injunction to restrain the respondents/defendants from interfering with his peaceful possession and enjoyment of the suit schedule A property bearing Plot No.21, admeasuring 217 sq. yards and suit schedule B property bearing Plot No.19, admeasuring 183 sq. yards both situated in Sy.No.30, Munganur Village, Hayathnagar Mandal, Ranga Reddy District. The suit was dismissed under judgment dated 28.09.2012. Aggrieved thereby, the petitioner/plaintiff filed an appeal in A.S.No.354 of 2012 before the Principal District Judge, Ranga Reddy District at L.B. Nagar. The appeal was allowed by judgment dated 30.06.2015 thereby granting decree of injunction in favour of the petitioner/plaintiff. The petitioner filed EP.No.28 of 2016 seeking eviction of the judgment debtors No.2 and 3 and to handover physical possession of the suit schedule property to the petitioner. By order dated 14.09.2017, the trial Court dismissed the petition as not maintainable. It was observed by the trial Court that the decree is silent with regard to delivery of possession and there was no direction in the decree for demolition, eviction and delivery of possession. Thus, the petitioner/plaintiff cannot seek for delivery of possession. The scope of the suit is limited to injunction simplicitor. 2
3. Mr. T. Vasanthakesavulu, party-in-person, submitted that the EP is maintainable under Order 21 CPC. Even assuming that none of the provisions under Order 21 CPC is applicable, still the Court below ought to have entertained the petition as being filed under Section 151 CPC. He further submitted that mere mentioning of wrong provision cannot be a ground to dismiss the EP. He was dispossessed during the pendency of the suit and entitled to delivery and restoration of possession and the Court below ought to have entertained the execution petition. He relied on a judgment of this Court in JAMALUDDIN v. MIRZA QAUDER BAIG1 and a judgment of the Punjab and Haryana High Court in MAM RAJ v. SABIRI DEVI2.
4. The record shows that respondent No.1 is a formal party; the notice sent to respondent No.2 is served but none appeared on his behalf and the notice sent to respondent No.3 returned unserved with endorsement 'party left", hence, treated as deemed service.
5. Having considered the submissions of the party-in-person, this Court is of the opinion that the execution petition filed by the party-in-person is not maintainable, as there is no decree for recovery of possession passed in favour of the petitioner. Order 21 CPC deals with execution petitions. A specific provision under 21 Rule 32 CPC is available for execution of an injunction decree. However, the said provisions does not come into play in the instant facts and circumstances of the case, as the petitioner is not seeking to invoke the said provision to punish the judgment debtors by detaining them in civil prison or attachment of their properties. In fact, the EP was filed for restoration of possession. The executing Court is bound by the decree. Thus, when an EP is filed, the executing Court will only have to 1 1995 (1) ALT 115 2 AIR 1996 P&H 96 3 act within the terms of the decree and cannot travel beyond the decree. Hence, the reasons given by the Court below that there is no decree of recovery of possession and as such, the EP for restoration of possession is not maintainable cannot be said to be an improper order.
6. It is the case of the petitioner that he lost possession over the suit property during the pendency of the suit and he is entitled to the fruits of the decree and the decree cannot be allowed to become redundant.
7. Having perused the record and upon hearing the petitioner, this Court is of the opinion that since the petitioner is seeking relief of restitution of possession thereby restoring the status quo ante as it existed on the date of filing of the suit, such relief can be granted under Section 144 CPC read with Section 151 CPC. The petitioner is given liberty to file a necessary application under Section 144 read with Section 151 CPC seeking restoration of possession, as decree of injunction is passed in his favour (see NALLAPATI PANDURANGA RAO v. VEMPATI VENKTATESHWARA RAO [2015 (4) ALD 54]. In such event, the Court below shall pass order on merits within a period of two (2) months from the date of filing such application by putting the respondents on notice and hearing all the parties.
The civil revision petition is disposed of. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________ B. VIJAYSEN REDDY, J August 6, 2021 DSK