Andhra Pradesh High Court - Amravati
Kagita Venkata Sanyasi Raju Died vs Bolla Vinash Another on 26 April, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CIVIL REVISION PETITION NO.4831 OF 2016
Between:
1. Kagita Venkata Sanyasi Raju (Died), S/o.Venkata
Reddy, 55 years, R/o. D.No.4-112/1, Mamidikuduru,
Razole, East Godavari District. (Defendant No.1/
Judgment-debtor No.1)
2. Kagita Sesha Ratnam, W/o. K.Venkata Sanyasiraju,
56 years, R/o. D.No.4-120/1, Mamidikuduru village,
Razole Mandal, Dr. B.R.Ambedkar Konaseema
District.
3. K.Barghava Lakshmi, W/o. Y.Naga Siva Krishna,
D/o.K.Venkata Sanyasi Raju, 29 years, R/o. D.No.4-
120/1, Mamidikuduru village, Razole Mandal, Dr.
B.R.Ambedkar Konaseema District.
4. K.Brahmini, D/o. K.Venkata Sanyasi Raju, 56 years,
R/o. D.No.4-120/1, Mamidikuduru village, Razole
Mandal, Dr. B.R.Ambedkar Konaseema District.
(Petitioner Nos.2 to 4 were brought on record as LRs
of the deceased petitioner No.1 as per Order, dated
07.03.2023 vide I.A.No.1 of 2022 in CRP No.4831 of
2016)
... Petitioners
Versus
1. Bolla Avinash, S/o. Subbarao, 15 years,
Student, Manepalli, Kothapeta, being minor,
represented by his mother and natural guardian
Smt. Bolla Suneetha.
...Respondent No.1/Decree-Holder/Plaintiff
2. The Chief Regional Manager (Retail), Regional
Office, Petrol Nilayam, Opposite A.U. IN Gate,
Visakhapatnam.
... Respondent No.2/Defendant No.2
*****
DATE OF ORDER PRONOUNCED : 26.04.2023.
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
1. Whether Reporters of Local Newspapers
may be allowed to see the Order? Yes/No
2. Whether the copy of Order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the Order? Yes/No
_____________________________
B.V.L.N.CHAKRAVARTHI, J
Page 2 of 9
* HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
+ CIVIL REVISION PETITION NO.4831 OF 2016
% 26.04.2023
# Between:
1. Kagita Venkata Sanyasi Raju (Died), S/o.Venkata
Reddy, 55 years, R/o. D.No.4-112/1, Mamidikuduru,
Razole, East Godavari District. (Defendant No.1/
Judgment-debtor No.1)
2. Kagita Sesha Ratnam, W/o. K.Venkata Sanyasiraju,
56 years, R/o. D.No.4-120/1, Mamidikuduru village,
Razole Mandal, Dr. B.R.Ambedkar Konaseema
District.
3. K.Barghava Lakshmi, W/o. Y.Naga Siva Krishna,
D/o.K.Venkata Sanyasi Raju, 29 years, R/o. D.No.4-
120/1, Mamidikuduru village, Razole Mandal, Dr.
B.R.Ambedkar Konaseema District.
4. K.Brahmini, D/o. K.Venkata Sanyasi Raju, 56 years,
R/o. D.No.4-120/1, Mamidikuduru village, Razole
Mandal, Dr. B.R.Ambedkar Konaseema District.
(Petitioner Nos.2 to 4 were brought on record as LRs
of the deceased petitioner No.1 as per Order, dated
07.03.2023 vide I.A.No.1 of 2022 in CRP No.4831 of
2016)
... Petitioners
Versus
1. Bolla Avinash, S/o. Subbarao, 15 years,
Student, Manepalli, Kothapeta, being minor,
represented by his mother and natural guardian
Smt. Bolla Suneetha.
...Respondent No.1/Decree-Holder/Plaintiff
2. The Chief Regional Manager (Retail), Regional
Office, Petrol Nilayam, Opposite A.U. IN Gate,
Visakhapatnam.
... Respondent No.2/Defendant No.2
Page 3 of 9
! Counsel for the Revision
-petitioners : Sri T.V.Jaggi Reddy
^ Counsel for the
Respondent No.1/ : Sri N.Siva Reddy
Decree-holder/Plaintiff
^ Counsel for the
Respondent No.2/D.2 : Sri A.P.Venu Gopal
< Gist:
> Head Note:
? Cases referred:
1. 2007 (5) ALT 621.
2. AIR 2005 Mad 31.
This Court made the following:
Page 4 of 9
THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTI
CIVIL REVISION PETITION NO.4831 of 2016
O R D E R:
This revision-petition is directed against the Order, dated
01.06.2016 in E.A.No.58 of 2014 in E.P.No.29 of 2014 in
O.S.No.4 of 2013 on the file of Senior Civil Judge's Court,
Kothapeta.
2. For the sake of convenience, the parties will be referred to
as they were arrayed in the original suit.
3. The plaintiff filed O.S.No.176 of 2010 for 'delivery of
possession' of plaint schedule property and arrears of rent. The
defendants filed their written statements. The suit was 'decreed
ex parte' on 10.06.2013. The revision-petitioner herein is the
defendant No.1 in the suit.
4. The plaintiff filed execution petition for delivery of
possession. The revision-petitioner filed an application under
Section 47 read with Section 151 of the Code of Civil Procedure,
1908 (for brevity 'CPC') contending that the decree for delivery of
possession of the plaint schedule property is not executable on
the ground that there is a petrol bunk in the suit site and the
plaintiff did not ask for any relief of 'Mandatory Injunction'
directing the revision-petitioner to remove the structures existing
in the suit schedule property.
5. The Trial Court, on consideration of the rival contentions
and on relying on the Judgment of this Court in Dongala
Venkaiah and another vs. Dongala Raji Reddy1, 'Dismissed' the
application.
6. The learned counsel for revision-petitioner would submit
that the defendant No.2 erected petrol bunk prior to the suit and
running the bunk in the plaint schedule property; But, the
plaintiff did not seek the relief of mandatory injunction for
removal of structures existing in the plaint schedule property
while seeking the relief of delivery of possession; Therefore, the
decree is non-executable as suit was filed without seeking the
relief of 'Mandatory Injunction' for removable of structures
existing in the plaint schedule property which are in existence in
the suit property, on the date of filing of the suit.
7. The learned counsel for the plaintiff would submit that this
Court in Dongala Venkaiah case (supra) after considering the
Judgment of the High Court of Madras in Kannu Gounder vs.
Natesa Gounder2, held that even if constructions were made and
existing prior to the date of the suit, it cannot be said that decree
1 2007 (5) ALT 621.
2 AIR 2005 Mad 31.
is inexecutable, when once the decree made by the Court is
declaring the plaintiff's title and recovery of possession, though
the plaintiff did not seek for the relief of Mandatory Injunction.
8. In the light of above rival contentions, the point that would
arise in the revision-petition is as under: -
"Whether the Trial Court committed any material
irregularity in the Order, dated 01.06.2016 passed
in E.A.No.59 of 2014 in E.P.No.29 of 2014 in
O.S.No.4 of 2013?"
9. P O I N T: -
It is an admitted fact that the plaintiff filed the suit for
'delivery of possession of the plaint schedule property' and
'arrears of rent' against the present revision-petitioner and
another i.e., the Chief Regional Manager of the company, which is
running a petrol bunk in the plaint schedule property. The
defendants filed their written statements. It appears none of them
took this plea in their written statement. The suit was 'Decreed'
ex parte on 10.06.2013. Neither of the defendants filed
application to set-aside the decree, nor preferred any appeal
against the said Decree and Judgment. Therefore, the decree
became final.
10. This Court in Dongala Venkaiah case (supra) in similar
circumstance and on considering Order XXI Rule 35 (3) of CPC
and by following the law laid down by the High Court of Madras
in Kannu Gounder case (supra) held that 'when plaintiff filed a
suit for recovery of possession, simply because he has not sought
for the relief of Mandatory Injunction, it cannot be said that the
decree is inexecutable.' It was further held that 'when once a
decree declaring the plaintiff's title and recovery of possession is
made by the Court, it is immaterial whether any structures were
made in the suit schedule land either prior to the institution of the
suit or during the pendency of the suit, the plaintiff/decree-holder
is entitled to take delivery of possession after removable of any
manner of construction or structures in the suit property.'
11. In the light of above proposition of law laid down by this
Court, the civil revision petition fails and the same is liable to be
dismissed. However, considering the representations made by
Sri T.V.Jaggi Reddy, learned counsel representing for revision-
petitioners and Sri N.Siva Reddy, learned counsel for respondent
No.1, Three (03) months time is granted to the respondent No.2
to vacate the premises and to deliver vacant possession to the
decree-holder, on a condition to pay rents due as on the date of
this Order, within a period of Two (02) months from the date of
this Order, failing which, the Execution Court can proceed with
the execution proceedings, as per law.
12. In the result, the Civil Revision Petition is 'Dismissed'.
There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
B.V.L.N.CHAKRAVARTHI, J
26th April, 2023.
Note:
LR Copy to be marked.
Furnish Copy by tomorrow.
B/o.
DNB
