Nallajamula Musunuru Sambrajyam ... vs Vejendla Bhavani,
2022 Latest Caselaw 8262 AP

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


              C.R.P.Nos.1328, 1329 & 1330 of 2021

COMMON ORDER:


      These three revision petitions, under Section 115 CPC, are

filed aggrieved by the docket order, dated 06.11.2021, passed in

E.P.Nos.72 of 2021, 71 of 2021 and 70 of 2021 in O.S.No.650 of

1999 on the file of the Court of I Additional Junior Civil Judge,

Tenali.


2.    Heard Sri E.V.V.S. Ravi Kumar, learned counsel appearing for

the petitioners/Judgment debtors 3 & 4 and Sri Madhava Rao

Nalluri, learned counsel for the 1st respondent/Decree Holder. The

respondents 2 & 3 are shown to be not necessary parties to these

revision petitions.

3. The facts leading to filing of these revision petitions, in brief,

are as follows:

(a) The respondents 2 & 3/defendants 1 & 2 are the children of

late Chalamaiah. The father of the plaintiff died intestate on

05.06.1999. The schedule property is the self acquired property of

the father of the plaintiff. The plaintiff and the defendants are in

joint possession and enjoyment of the schedule property. The

plaintiff is entitled for 1/3rd share in the schedule property. When

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the plaintiff demanded for partition, the 1st defendant claimed that

he is also entitled to a share. The 3rd defendant was married

woman having a son through her husband who died after the

marriage. During the life time of father of the plaintiff, the 3 rd

defendant developed intimacy with the father of the plaintiff and

taking advantage of the same, defendants 3 and 4 are falsely

claiming the plaint schedule property and trying to disturb the

possession of the plaintiff, and defendants 1 and 2. As the

defendants are not cooperating for amicable division, the plaintiff

filed the suit for division of the plaint schedule property into three

equal shares and for separate possession of one such share to the

plaintiff from the obstruction from anyone particularly, defendant 3

& 4.

(b) The 1st defendant filed written statement, which was adopted

by the 2nd defendant, denying the plaint averments and contending

that the defendants 3 & 4 set up a forged Will and are claiming

rights under the forged Will and entered into possession of the

plaint schedule properties subsequent to filing of the suit. The 4th

defendant filed written statement, which was adopted by the 3rd

defendant, contending that the schedule property is in possession

and enjoyment of defendants 3 and 4 and that the court fee paid is

not correct. The plaintiff's father has got two sons and two

daughters. The second son, Venugopalarao, went on adoption.

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Chalamaiah performed the marriages of plaintiff, defendants 1 & 2

and purchased properties in their names with his money. He

bequeathed the remaining property in favour of defendants 3 and 4

by executing Will, dated 27.01.1995, in a sound and disposing state

of mind. The said Chalamaiah died on 05.06.1999. Thus, by virtue

of the said Will, defendants 3 & 4 are in possession and enjoyment

of the property. The 3rd defendant is the wife of said Chalamaiah

and the schedule property was given for her maintenance. She is

the absolute owner of the property and the plaintiff, defendants 1

and 2 are not co-sharers. The suit is not maintainable and is liable

to be dismissed.

4. On contest, the trial Court decreed the suit holding that the

plaintiff is entitled for 1/3rd share in the plaint schedule property

along with defendants 1 and 2, and the suit against defendants 3

and 4 is dismissed. The appeal filed by the 4th defendant in

A.S.No.2 of 2006 is dismissed, by decree & judgment, dated

31.12.2009. The second appeal filed in S.A.No.247 of 2010 was also

dismissed confirming the decree & judgment in A.S.No.2 of 2006.

The plaintiff filed I.A.No.1160 of 2006 for passing of final decree in

pursuance of preliminary decree and to allot 1/3rd share to the

petitioner in the plaint schedule property along with defendants 1 &

2. The trial Court allowed the petition allotting item No.1 of the

petition schedule property to the petitioner, item No.2 of petition

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schedule property to the 1st respondent and item No.4 of petition

schedule property to the 2nd respondent.

5. The decree holder filed execution petitions in E.P.Nos.72 of

2001, 71 of 2021 and 70 of 2021 praying to issue delivery warrant

against the judgment debtors for delivery of item No.1, item No.4,

and item No.2 of decree schedule properties respectively.

6. By the impugned docket order, dated 06.11.2021, the

execution Court issued delivery warrants.

7. Aggrieved by the delivery warrants issued by the execution

Court, these three revisions are filed.

8. The grounds raised in these three revisions, which are

common, briefly stated, are as follows:

i) The execution Court grossly erred in issuing the delivery warrant for effecting delivery of EP schedule property to the 1st respondent/DHr without observing that the present execution petition under Order XXI Rule 35 CPC is not maintainable as the main suit was dismissed against them;

ii) The execution Court went wrong in ordering the execution petition against the petitioners herein without there being any relief claimed by the respondents/DHrs against these petitioners in the main suit;

iii) The execution Court ought to have observed that the suit was filed only for partitioning the properties among

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the sharers, but no relief is claimed for recovery of possession;

iv) The execution Court ought to have considered that these revision petitioners are in possession of the schedule properties long prior to filing of the suit, but neither any relief is claimed nor was granted against them in the main suit, and hence, the present execution petition for delivery of property is liable to be dismissed;

v) The trial Court ought to have given an opportunity to the petitioners to contest the execution proceedings in which neither notice is issued to the petitioners nor any opportunity to file counter;

vi) The execution Court wrongly ordered delivery of the property without there being any decree;

vii) The execution Court went wrong in passing a cryptic order without assigning any reasons and the same is unsustainable;

9. The main contention of the revision petitioners in all the

revisions is that the Decree Holder seeks to enforce the decree

against the revision petitioners/JDrs 3 & 4/defendants 3 & 4, though

the suit was dismissed as against them and it is only a dubious

method of enforcing the decree against the parties by suppressing

the truth of dismissal of the suit against them, and even by playing

fraud on the execution Court, not getting the notices issued to them

or by stating against whom the decree is sought to be executed.

10. Learned counsel for the revision petitioners relied on the

decision in IDPL Employees Co-operative Housing Building

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Society Ltd. and Ors. vs. B. Rama Devi and Ors.1, wherein at

paragraph Nos.33 & 35, it was held as follows:

"33. So much, as to nature of assignment. As for stage of proceedings, it may be seen that in a suit for partition, delivery of possession of properties through the medium of Court would arise only to the limited extent of making one party in possession of the property, to pass on the same to the other party, whom it was allotted. Even this exercise can be undertaken only at the stage of execution, after the final decree is passed. The question of recovery of possession of the properties from the persons who are not parties to the suit is undoubtedly beyond the scope of a partition suit. The recovery of possession is impermissible even from a party to the suit, unless he is himself a sharer or claims through any sharers. The distinction maintained by the Code of Civil Procedure in the form of decrees under Rules 12 and 18 of Order XX C.P.C. is significant. In a suit for partition, there is no scope for inclusion of the relief of recovery of immovable property from the third parties.

35. From the scheme under Code of Civil Procedure, it is difficult to discern that the immovable property can be recovered from persons other than the sharers on the strength of a decree in a partition suit. The circumstances under which possession of an immovable

2004 (5) ALD 632

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property can be delivered under Rules 35 and 36 of Order XXI C.P.C., the nature of possession so delivered and the rights that can accrue on account of it, were aptly explained by the respective High Courts, in the decisions reported in Ayer Ravji Vasta v. Joshi Gopalji Khimji, [AIR 1963 Guj 328], Kamlakar and Company v. Gulamshafi, [AIR 1963 Bom 42] and Kattil Raman Kunhi 's Sons Chathu and Ors. v.

Vadakke Poduvath Devaki Amma's daughter Janaki Amma [AIR 1969 Ker 121].

The sharers in a partition suit have to receive their shares in the suit schedule properties with the incidence of rights and obligations in relation to such properties. It is no part of the duty of the Court to clear encumbrance or recover possession of such properties, for the benefit of the decree-holders or their assignees. The disputes in relation to the partitioned properties vis-a-vis third parties, have to be worked out separately, by the Joint owners collectively or the respective sharers individually. If such a task is undertaken by a Court in a suit for partition, it partakes the character of a suit for recovery of possession or administration. Therefore, it cannot be said that the judgment of the Delhi High Court is an authority for proposition that it is permissible to recover the possession of the immovable properties from the persons other than the sharers, on the strength of a decree in partition suit."

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11. On the other hand, learned counsel for the 1st respondent/DHr

contended that the decree is sought to be executed only against

defendants 1 & 2 and property was also delivered. Learned counsel

further relied on the decision in Rachakonoda Venkat Rao v.

R. Satya Bai (Dead) by L.R and another2 wherein it was held as

follows:

"19. ........From this the learned counsel submits

of Schedule I are concerned, the decree was a final decree while for rest of the properties it was only a preliminary decree. It is further submitted by the learned counsel for plaintiffs that in the plaint they had asked for separate possession of all the properties failing to their share. Accordingly a final decree with respect to the joint properties remained to be passed. Referring to Sub-section 2 of Section 2 of the Code of Civil Procedure It was argued that a suit has to be completely disposed of by a final decree. In the decree dated 13th July, 1978, properties were allotted to the plaintiffs as per Schedule I. The said schedule shows that certain properties were exclusively allotted to the plaintiffs while certain other properties i.e. properties at Serial Nos. 4, 6 and 7 of Schedule-

I remained joint. For purposes of determination whether the said decree was a preliminary decree or a final decree or a decree partly preliminary or partly final, reference has to be

(2003) 7 Supreme Court Cases 452

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made to the decree itself, it is also important to gather the intention of the parties from the compromise application because it was a compromise decree. We have already made reference to both these documents. In our view, intention of the parties is clear, i.e. the entire controversy in the suit was sought to be finally settled, in a partition it is not necessary that each and every property must be partitioned and that the parties are put in separate possession of respective portions of properties falling to their share. In the present case, the parties mutually agreed to keep some of the properties joint. The reason for this is also available from the record. The properties which were kept joint were in a state that a partition by metes and bounds was not possible. Property at Serial No. 4 of the Schedule I was under acquisition and there was no point in partitioning it by meets and bounds. Regarding property No. 6 the share of the plaintiff had been quantified in terms of money i.e.= Rs. 7500/- (Rupees Seven Thousand Five Hundred only) payable by the defendants and the plaintiffs were given a right to execute the decree to that extent Property at Serial No. 7 was fully occupied by outsiders with whom litigation was going on.

The   fate   of     the   litigation     was       unknown.
Therefore,     understandably            it    was         not

partitioned. These facts clearly show that at the time of compromise itself the parties had taken a final decision with respect to partition of all the joint family properties and the same had

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been given effect to, The compromise application does not contain any clause regarding future course of action which gives a clear indication that nothing was left for future on the question of partition of the joint family properties, The curtain had been finally drawn."

12. The petitioners also filed reply affidavit with the following

averments:

The allegations leveled and submissions made in the counter

affidavit are false, untenable and unsustainable. The 1 st petitioner

is the legally wedded wife of late Chalamaiah and 2nd petitioner is

his son. He had executed Will, dated 27.01.1995, bequeathing the

suit schedule properties in their favour. The said Will came into

force upon his death and they are in continuous possession and

enjoyment of the suit schedule property. The 1 st respondent filed

collusive suit for partition against the respondents 2 & 3 without

seeking any relief against them and showing them as proforma

parties. The said suit was filed by paying a fixed court fee of

Rs.200/- under Section 34(2) of A.P Court Fee & Suits Valuation

Act, 1956, by alleging joint possession among the alleged sharers.

They did not seek any relief against the revision petitioners in the

suit. The said suit was decreed only for the relief of partition

against respondents 2 & 3/DHrs 1 & 2 and it was dismissed against

the revision petitioners. No relief was granted in the said suit for

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recovery of possession from the revision petitioners. Hence, the

respondents/DHrs cannot file any execution petition against the

petitioners seeking any relief. The execution court travelled beyond

the scope of the decree and issued delivery warrants, which are

impermissible. The present execution petitions are not maintainable

against the petitioners. The respondents/DHrs are never in

possession of the schedule properties and even today, the

petitioners are in continuous possession and enjoyment of the

schedule properties. This Court, by order, dated 03.12.2021,

granted stay of all further proceedings in the execution petition, for

a period of eight weeks, and the said interim order was extended

from time to time.

13. Thus, it is the contention of the revision petitioners/

defendants 3 & 4 that they are in possession of the suit schedule

properties and since the suit is dismissed against them and there is

no direction against them to deliver possession of the suit schedule

properties, no execution for delivery of property can be taken

against them. In column No.11 of the prescribed proforma for

execution petition to be filed under Order XXI Rule 2 CPC, it is

necessary for the DHr to indicate against whom the execution is

sought whereas in column No.3, the names of all JDrs would be

recorded.

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14. In the present case, all the names of four JDrs including

defendants 3 & 4 against whom the suit was dismissed are noted.

It is also specifically mentioned in column No.3 that the suit was

dismissed against respondents 3 & 4 and stated that notice is not

necessary to them. In column No.11, instead of stating against

whom the decree is sought to be executed, it is cleverly noted that

"for delivery of E.P. schedule property, which is item No.1/2/4 of

the decree schedule property." Therefore, it is misleading the

execution Court. Further, in column No.12, the relief sought is for

recovery of possession of the property without obstruction from any

party. Under these circumstances, the tact adopted by the decree

holder/ plaintiff is very evident on record, as rightly contended by

the revision petitioners.

15. In a back door way, the decree is being executed against the

defendants against whom the suit was dismissed and there is no

decree or a direction given against them.

16. It is also seen from the record that no notice was given to

defendant Nos.3 & 4 in the final decree proceedings also, since the

suit was dismissed against them. Thus, they were deprived of

notices either in the final decree or in the execution petitions,

however, decree is sought to be executed, in an indirect manner

against them. Thus, the executing Court is required to look into all

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these aspects and take appropriate step. Therefore, issuing warrant

for delivery of the property, in the aforesaid circumstances, is

causing prejudice to the revision petitioners as they have no

opportunity of hearing. Consequently, the docket order, dated

06.11.2021, is liable to be set aside. The execution Court has to

consider the matter afresh and pass appropriate orders.

17. Accordingly, all the Civil Revision Petitions are allowed setting

aside the order, dated 06.11.2021 in E.P.Nos.72 of 2021, 71 of

2021 and 70 of 2021 in O.S.No.650 of 1999 and directing the

execution Court to consider the matter afresh and pass appropriate

orders.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

_________________ B.S BHANUMATHI, J 02-11-2022 RAR