Byalla Ankanna vs Rachamallu Rameshwar Reddy
2023 Latest Caselaw 2691 AP

          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

              I.A. No.2 OF 2023 IN A.S. No.44 OF 2023

ORDER:

This Application, under Section 151 of the Civil Procedure

Code, 1908 (for short, 'the CPC'), is filed by the

petitioner/appellant, with a prayer to stay all further proceedings

including execution of the decree passed in O.S. No.105 of 2017,

dated 26.12.2022, on the file of the Court of Principal District

Judge, Anantapuram, pending disposal of the Appeal.

2. The case of the petitioner, in brief, is that

respondent/plaintiff, got filed a suit in O.S. No.105 of 2017 for

grant of permanent injunction restraining the petitioner/defendant

from interfering with his alleged possession claiming that he

purchased the schedule property under registered sale deed, dated

30.11.2016, and that since then he is in possession and

enjoyment and that the petitioner/defendant is interfering with his

possession etc. The petitioner/defendant filed a written statement

denying the case set-up by the respondent/plaintiff. The Court

below, on erroneous consideration of the facts and law, decreed

the suit. The petitioner/defendant is having good grounds to

AVRB,J IA No.2/2023 in AS No.44/2023

succeed in the Appeal. Hence, this Interlocutory Application for

stay.

3. Respondent/plaintiff got filed a counter resisting the prayer

of the petitioner contending, in substance, that the Court below

appreciating the contention with regard to his possession and

enjoyment granted the decree of permanent injunction and that

the petitioner/defendant is not entitled to the relief prayed.

4. Now in deciding this Interlocutory Application, the point that

arises for consideration is whether the petitioner is entitled to have

the stay of all further proceedings including execution of the

decree passed in O.S. No.105 of 2017, dated 26.12.2022, as

prayed for?

5. POINT: Both the learned counsel would contend in

accordance with their pleadings in this Application.

6. It is to be noticed that the question of execution of a decree

in a suit filed for permanent injunction would arise only when

there is willful disobedience, as contemplated under Order XXI

Rule 32 of CPC, and in that event only the person who obtained a

permanent injunction has to complain before the Court below by

filing an Execution Petition under Order XXI Rule 32 of CPC and

AVRB,J IA No.2/2023 in AS No.44/2023

such an application would be decided only after giving notice to

the opponent. Firstly, it is not the case of the petitioner/appellant

that whether the respondent/plaintiff filed Execution Petition,

under Order XXI Rule 32 of CPC, by complaining of willful

disobedience of the injunction granted. When this Court took this

fact to the notice of learned counsel for the petitioner/appellant,

he would rely upon a decision of this Court in Ravipati Satya

Harichandra Prasad v. Atkuri Venkatanarayana1 and would

contend that this Court may be pleased to suspend the operation

of the judgment and decree in O.S. No.105 of 2017.

7. This Court has gone through the aforesaid decision. It is a

case where, admittedly, the defendant in the said case was in

possession of disputed passage, during pendency of the Suit, and

the plaintiff had alternative passage on the western side which is a

public puntha and plaintiff has been using the same for ingress

and egress. In such situation, the High Court of Andhra Pradesh

suspended the order of permanent injunction. Coming to the

present case on hand, it is the specific case of the

respondent/plaintiff before the Court below that he has been in

possession and enjoyment of the property since the date of his

1 2001 LawSuit (AP) 1277

AVRB,J IA No.2/2023 in AS No.44/2023

purchase and the petitioner/defendant tried to interfere with his

possession. There was no admission on the part of the

respondent/plaintiff that the petitioner/defendant was in

possession of the property. The Court below negativing the

contention of the petitioner/defendant decreed the suit by holding

that the plaintiff could establish his possession and enjoyment.

When that is the situation the Appeal filed by the

petitioner/appellant is to be adjudicated on merits.

8. In the peculiar facts and circumstances, operation of the

judgment of the Court below in O.S. No.105 of 2017, dated

26.12.2022, cannot be suspended and such a relief would nullify

the judgment and decree impugned without adjudicating the

contention of both parties in the Appeal. It is always open to the

appellant to seek stay of execution of the decree in the event of the

respondent/plaintiff approaching before the executing Court to

execute the decree. Hence, the contention canvassed by learned

counsel for the petitioner/appellant to suspend the operative

portion of the decree and judgment instead of staying of the

execution is not at all tenable in the light of the peculiar facts and

circumstances.

AVRB,J IA No.2/2023 in AS No.44/2023

In the result, the Interlocutory Application is dismissed. No

order as to costs.

________________________________ JUSTICE A.V.RAVINDRA BABU Date : 01.05.2023 DSH