Vempuri Sowri Mohan Reddy vs Vempuri Hemalatha 8 Others
2022 Latest Caselaw 8368 AP

                                       1



      THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

            CIVIL REVISION PETITION No.1593 of 2015

O R D E R:

This Civil Revision Petition is filed by the petitioner/Respondent

No.2/Defendant No.5 under Section 115 of Civil Procedure Code (in

short CPC) against the Orders dated 19.03.2015 passed by learned

Principal Senior Civil Judge, Nellore, in E.P.No.178 of 2011 in

O.S.No.80 of 1991 wherein and whereby Court below allowed

execution petition filed by the respondents and Ordered for delivery of

execution petition schedule properties to the respondents.

2. The respondents, who are Judgment Debtor Nos.3, 4, 6 and 8

field execution petition before Court below praying the relief as

follows:-

"It is submitted that the suit for partition was decreed and preliminary decree was passed on 02.02.1993 allotting 6/13th shares to the Decree Holders. Later on final decree was passed on I.A.N o.790 of 1993, dated 13.09.2000 in pursuance of the preliminary decree. Commissioner effected partition in respect of the schedule mentioned property in I.A.No.790 of 1993 as against the said order Judgment Debtor Nos.4 and 5 filed A.S.No.59 of 2000 on the file of the District Judge, Nellore, the said appeal was partly allowed on 19.07.2000. Thereafter as against the said Judgment, Judgment Debtor Nos.4 and 5 preferred S.A.No.821 of 2001 on the file of the High Court of

Andhra Pradesh, Hyderabad. The said appeal was allowed on 22.03.2002 in part and remanded the matter to this Hon'ble Court. The Decree Holder submits in pursuance of the Order in S.A.No.821 of 2000 the Order in I.A.No.790 of 1993 was reopened and the said matter was disposed of on 06.02.2004 and as per clause iii of the decretal order in I.A.No.790 of 1993, dated 06.02.2004 the western portion as shown in the plan filed by the Advocate/Commissioner is allotted to 6/13th share to the plaintiff.

The petitioners humbly submit that the Decree Holders, who are children of the 2nd Judgment Debtor. Vemupati Sundaramma, i.e., 1st respondent in this E.P. have got filed E.P.No.52 of 2004 in O.S.No.80 of 1991 before this Hon'ble Court, regarding their 6/13th share, and this Hon'ble Court was pleased to depute Court Ameen and delivered the possession of 6/13th share to the Decree Holders on 14.04.2004 and the E.P. was closed with the said endorsement on 29.04.2004. Inspite of the request made by the petitioner herein, who are Judgment Debtor Nos.3, 4, 6 to 8 i.e., petitioners herein, the Court Ameen did not allot and deliver possession of the property to the petitioners regarding their 5/13th share on the eastern side portion of E.P. schedule property. Hence, this E.P for justice as the 5th Judgment Debtor. Vemupati Sowri Mohanarao, is in possession of the entire item No.2 of plaint A schedule property the petitioners/JDrs 3, 4 and 6 to 8 herein therefore pray that this Hon'ble Court may be pleased to depute the Court Ameen directing him deliver possession of the petitioners 5/13th share, in the suit schedule property i.e., 5/7th share, in item B property shown in the rough sketch of plaint A schedule with the help of the surveyor under provisions of Order XXI Rule 35 of C.P.C

otherwise the petitioners put to serious loss and irreparable injury.

We pray for order accordingly".

3. They pray for division of their 5/13th share in the execution

petition, which reads as under:-

"Nellore District Registration, Nellore, Sub Registration, Nellore Town-walkers road, Mulapet, Municipal ward No.24, D.Nos.723 and 724 an extent of 75 ankanams including 61/2 ankanams of Madras terraced 3 ankanams of zinc sheeted shed 5 ankanams of thatched house and 3 ankanam of thatched shed therein:

Bounded by:

               East      : Public road leading to Church

               South     : House of Mallela Ratnam, Narayana and
                           Sripathi Venkatamma
               West      : Municipal Donka
               North     : Compound wall of Telugu Baptist Church"

4. The petitioner herein who is Respondent No.2/Judgment Debtor

No.5 filed counter before trial Court denying the contention of the

respondents herein. It is the contention of the revision petitioner/R.2

that the respondents have not contested the suit or final decree

proceedings due to that they are not entitled to file execution petition.

He also stated that it was orally agreed between himself and

respondents that the respondents shall not claim any share in Item

No.2 of plaint schedule i.e., the eastern side portion of commissioners

plan wherein he constructed a residential building and residing therein

with an understating that the respondents shall take the landed

property shown in 'B' and 'C' schedule in the plaint plan. It is also the

contention of the revision petitioner that the respondents have filed

execution petition for their alleged share in the item No.2 of plaint

schedule property on the eastern side, he reserves his right to seek

partition of his share in the landed property shown as 'B' and 'C'

schedule in the plaint. He pleaded that execution petition is barred by

limitation. The Court below after hearing both sides allowed petition

filed by the respondents even at the stage of enquiry under Order XXI

Rule 22 of C.P.C.

5. Aggrieved by the orders passed by Court below, the petitioner

herein filed present revision petition stating that orders passed by the

Court below directing the delivery of possession of E.P. schedule

property purportedly in execution of a preliminary decree in O.S.No.80

of 1991 illegal and vitiated by material irregularities. He submits that

execution petition filed by the respondents is not maintainable in the

absence of final decree allotting specific share to the respondents in

the execution petition schedule property and Court below not correct in

ordering delivery of execution petition schedule property directing the

Court Ameen to cause division of the property and failed to consider

that entire suit 'B' schedule property was given to the respondents in

lieu of the respondents giving up their share in 'A' schedule house

property. He prays to allow the revision petition.

6. I have heard both sides.

7. Learned counsel for the revision petitioner would submit that

execution petition filed by the respondents, who are also the

defendants in the suit is not maintainable without filing final decree for

allotment of their share. He would further submit that the Court below

without considering schedule shown in the execution petition ordered

for delivery of property though there is no division of share and

allotment of share to the respondents by the Court. He prays to allow

the revision petition.

8. Learned counsel for the respondents would submit that Court

below right in ordering delivery of the property basing on

Advocate/Commissioner report filed and in pursuance of the same,

final decree has been passed in I.A.No.790 of 1993 in O.S.No.80 of

1991. He prays to dismiss the revision petition.

9. Now the issue that emerges for consideration of this Court is:-

"Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?"

POINT:-

10. It is not in dispute that the plaintiffs, who were not shown as

parties to the execution petition filed by the respondents herein have

filed suit against the petitioner herein and the respondents seeking

partition of their 6/13th share in the plaint schedule properties wherein

learned subordinate Judge, Nellore, passed a decree as prayed for

allotting 6/13th share to the plaintiffs wherein there is no specific

finding with regard to shares to be allotted to the petitioner and

respondents herein. After that, the plaintiffs in O.S.No.80 of 1991 filed

petition for passing of final decree under Order XX Rule 18 C.P.C for

division of plaint schedule property and delivery of possession of their

6/13th share. The said petition allowed by overruling objections raised

by the petitioner herein and R.2 herein, who were shown as R.4, R.5 in

the final decree petition filed by the plaintiffs in O.S.No.80 of 1991. It

is ordered in I.A.No.790 of 1993 in O.S.No.80 of 1991 final decree

petition dated 13.09.2000 that the report of learned Commissioner is

accepted and objection raised by R.4, R.5 therein is overruled and final

decree is passed allotting the property set out in annexure-I of the

report of Advocate/Commissioner and final decree is ordered to

engross on non-judicial stamp to be filed by the plaintiffs. Against the

orders passed in final decree petition, the petitioner herein and R.2

who were R.4, R.5 in final decree proceedings have filed A.S.No.59 of

2000 on the file of II Additional District Judge, Nellore, which was

allowed in part so far it relates to 'B' and 'C' schedule properties with a

direction to re-entrust the warrant to Advocate/Commissioner to

physically verify 'B' and 'C' schedule properties and divide the same as

per the terms of the preliminary decree with the assistance of qualified

surveyor, but dismissed the appeal in respect of 'A' schedule property.

Aggrieved by the orders passed by the Appellate Court in A.S.No.59 of

2000, the petitioner herein and R.2 preferred Second Appeal No.821 of

2001 before this Court wherein after hearing submissions made by

both sides, disposed of Second Appeal with a directions and set aside

the Judgment and decree in I.A.No.790 of 1993 in O.S.No.80 of 1991

as confirmed in A.S.No.59 of 2000 and directed the trial Court to pass

final decree afresh after considering the settlement arrived at and

recorded in the Second Appeal. Then again learned Principal Senior

Civil Judge, Nellore, after hearing both sides passed final decree on

06.02.2004 in I.A.No.790 of 1993 in O.S.No.80 of 1991 wherein it is

observed at Para No. "11", which reads as under:-

"There was an understanding before the Hon'ble High Court that parties agreed to exchange their plots which was originally allotted by this Court basing on the report of the Advocate/Commissioner. Originally, the western plot was allotted towards 7/13th share of the respondents. After demarcating the share of the second respondent, respondents 3 to 8 are entitled to the remaining western side plot. The eastern side portion was originally allotted to the petitioners. As per understanding reached before the Hon'ble High Court, the eastern side plot is to be allotted to the respondents 3 to

8. The western side plot excluding 1/13th share allotted to the second respondent is now to be allotted to the petitioners as per understanding. Thus, the objections raised by the 5th respondent are not sustainable in the light of the observations made by the Hon'ble High Court in S.A.No.821 of 2001. Final decree is to be passed in terms of preliminary decree accordingly."

11. On perusal of findings of the trial Court in I.A.No.790 of 1993 in

O.S.No.80 of 1991, dated 06.02.2004, which shows that the eastern

side plot is allotted to the respondents 3 to 8 wherein it is not

specifically allotted separate share to the respondents herein, who filed

execution petition in pursuance of the said final decree. A copy of the

decree in I.A.No.790 of 1993 in O.S.No.80 of 1991 is also made

available which shows that the eastern portion as shown in the plan

filed by the Advocate/Commissioner is allotted towards 6/13th share of

respondents 3 to 8/D.3 to D.8 i.e., petitioner herein and respondents

together. There is no direction in the said final decree, which portion is

allotted to the respondents towards their 5/13th share and there is no

division among respondents. Though final decree passed by Principal

Senior Civil Judge, Nellore, as per directions of this Court respondents

herein instead of filing final decree petition have chosen to file

execution petition for delivery of 5/13th share to them on eastern side

portion. The plaintiffs therein already filed execution petition in

E.P.No.52 of 2004 for delivery of share 6/13th and the same was

delivered to them on 14.04.2004. The orders passed by Court below

shows that which disbelieved oral understanding between revision

petitioner and the respondents in respect of landed property and house

property as pleaded by the petitioner and ordered for delivery of 5/13th

share to respondents in the E.P. schedule property. Learned trial Judge

failed to consider that there is no final decree allotting specific shares

to the respondent as now the dispute is between Judgment Debtors as

Decree Holder in O.S.No.80 of 1991 have already taken possession of

their 6/13th share by filing execution petition, which was also closed on

29.04.2004 itself. The final decree passed by Principal Senior Civil

Judge, Nellore, dated 06.02.2004, which shows that 6/13th share is

allotted to the petitioner and the respondents together and there is no

division of shares among them. For which the respondents ought to

have filed petition for passing of final decree allotting specific share to

them if they are so advised but instead of that they filed execution

petition for delivery of their 5/13th share excluding the share of the

petitioner herein. There is no final decree in favour of the respondents

allotting 5/13th share to them, which shows that execution petition filed

by the respondents for delivery of 5/13th share is without final decree

in their favour. Therefore orders passed by Court below without

considering the said aspect is not tenable either in law or on facts

warrants interference of this Court under Section 115 of C.P.C.

12. In the result, the Civil Revision Petition is allowed. The orders

passed by Principal Senior Civil Judge, Nellore, in E.P.No.178 of 2011 in

O.S.No.80 of 1991 are hereby set aside. No order as to costs.

Consequently, miscellaneous petitions, if any, pending shall

stand closed.

The interim stay if any granted is stand vacated.

___________________________ JUSTICE BANDARU SYAMSUNDER Date :07.11.2022 Chb

THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.1593 of 2015

Date : 07.11.2022

Chb