Andhra Pradesh High Court - Amravati

Khandavilli Rudraveni vs Khandavilli Annavaram Another on 11 May, 2023

       HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                                 ****
            CIVIL REVISION PETITION NO.1800 OF 2015
Between:
Khandavilli Rudraveni, W/o. Rudrayya, 40 years, Housewife,
R/o.Kotilingalapeta, Rajahmundry, East Godavari District.
                              ... Petitioner/Respondent No.1/Plaintiff
                            Versus
1.    Khandavilli Annavaram, S/o. Bodiyya, 42 years,
      Worker, R/o.Kotilingalapeta, Rajahmundry, East
      Godavari District.
                         ... Respondent No.1/Petitioner/Defendant No.2

2.    Khandavilli Pattabhi, S/o. Bodiyya, 70 years, Worker,
      R/o.Kotilingalapeta, Rajahmundry, East Godavari
      District.
                 ...Respondent No.2/Respondent No.2/Defendant No.1

                               *****

DATE OF ORDER PRONOUNCED                  :       11.05.2023


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
      * HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
           + CIVIL REVISION PETITION NO.1800 OF 2015
                          % 11.05.2023
# Between:
Khandavilli Rudraveni, W/o. Rudrayya, 40 years, Housewife,
R/o.Kotilingalapeta, Rajahmundry, East Godavari District.
                              ... Petitioner/Respondent No.1/Plaintiff
                           Versus
1.    Khandavilli Annavaram, S/o. Bodiyya, 42 years,
      Worker, R/o.Kotilingalapeta, Rajahmundry, East
      Godavari District.
                         ... Respondent No.1/Petitioner/Defendant No.2

2.    Khandavilli Pattabhi, S/o. Bodiyya, 70 years, Worker,
      R/o.Kotilingalapeta, Rajahmundry, East Godavari
      District.
                 ...Respondent No.2/Respondent No.2/Defendant No.1


! Counsel for the Revision
  -petitioner                   :   Sri T.V.Jaggi Reddy

^ Counsel for the
  Respondent No.1/              :   Sri K.Neelakanteswara Rao
  Petitioner/D.2

^ Counsel for the R.2           :   Notice Served, none appeared
  R.2/Defendant No.1

< Gist:

> Head Note:

? Cases referred:
      1.     (2) AIR 1995 SC 441.
      2.     2012 (2) ALT 230 (S.B.).

This Court made the following:




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      THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTI

          CIVIL REVISION PETITION NO.1800 of 2015

O R D E R:

This revision-petition is directed against the Order, dated

19.01.2015 in I.A.No.130 of 2009 in O.S.No.262 of 1988 on the

file of Principal Senior Civil Judge‟s Court, Rajahmundry filed

under Section 144 of the Code of Civil Procedure, 1908 (for

brevity „CPC‟), whereunder the Trial Court „Partly Allowed‟ the

application, for restitution of possession of „C‟ schedule property

to the defendant No.2.

2. The Respondent No.1/judgment-debtor No.2 filed

I.A.No.130 of 2009 before the original Court for restitution of the

impugned property i.e., „C‟ schedule property covered by decree

in the partition suit i.e., O.S.No.262 of 1988, and the Trial Court

after considering the evidence of both sides placed before it

„Allowed‟ the application since the said property was delivered in

execution of the decree in the partition suit, which was later set-

aside in O.S.No.68 of 1993.

3. The contention of the revision-petitioner, who is the decree-

holder in the Partition suit, is that the property ordered for

restitution, is not a part of „C‟ schedule property covered by the

partition suit and that it was not delivered in execution of the

decree of the partition suit. The contention of the respondent

No.1, who is the defendant in the partition suit and decree-holder

in subsequent suit i.e., O.S.No.68 of 1993 on the file of I

Additional Junior Civil Judge‟s Court, Rajahmundry, whereunder

the partition decree was set-aside, confirmed by the First

Appellate Court and subsequently by this Court in second appeal

is that the impugned property is part of „C‟ schedule property of

the partition suit and it was delivered to the revision-petitioner in

execution of the decree of the partition decree.

4. The learned counsel for the revision-petitioner would

submit that impugned property is property of the revision

petitioner; plaint schedule of partition suit in respect of „C‟

schedule property would disclose that the impugned property is

not part of the decree covered by the partition suit and therefore,

it was not delivered during the execution of the partition decree,

but the Trial Court erroneously held that it is a part of the

partition decree, and thereby committed material irregularity.

5. The learned counsel for respondent No.1, who is judgment-

debtor No.2, would submit that the revision-petitioner was

examined as a witness during the enquiry of the „Restitution

Application‟ as R.W.1 and in the cross-examination, it was

admitted that the impugned property is covered by „C‟ schedule

property of the partition suit and later, in the Final Decree

Petition proceedings, the Commissioner, in his Report identified

the same as „C‟ schedule property and subsequently in execution

proceedings it was delivered to the revision-petitioner; and

therefore, since the decree in the partition suit was set-aside

subsequently in O.S.No.68 of 1993 filed by the respondent No.1,

which was confirmed in the First Appellate Court and also in the

Second Appel by this Court in the Second Appeal No.969 of 2005,

it was delivered to the respondent No.1.

6. The learned counsel for respondent No.1 would further

submit that the revision is not maintainable since Order passed

under Section 144 of CPC is a decree under Order II Rule 2 of

CPC and therefore, only appeal lies as per Section 96 of CPC. In

support of his arguments, he relied on a Judgment of this Court

in Kavita Trehan vs. Balsra Hygiene Products Limited1.

7. In the light of above rival contentions, the point that would

arise in the revision-petition is as under: -

"Whether a revision is maintainable against the Order and Decree passed under Section 144 of the Code of Civil Procedure, 1908?"

1 (2) AIR 1995 SC 441.

8. P O I N T: -

It is an admitted fact that the revision-petitioner filed

Partition suit in O.S.No.262 of 1988 on the file of Principal Senior

Civil Judge‟s Court, Rajahmundry; it was preliminarily decreed

on 14.02.1989 and later final decree was passed; in execution of

the said decree, „C‟ schedule property was delivered to the

revision-petitioner as per the decree.

9. It is also an admitted fact that the respondent No.1 filed

O.S.No.68 of 1993 on the file of I Additional Junior Civil Judge‟s

Court, Rajahmundry to set-aside the decree in the partition suit

on the ground of fraud: and the Trial Court decreed the said suit

on 06.09.1999. The revision-petitioner filed appeal in A.S.No.173

of 1999 on the file of V Additional District Judge (Fast Track

Court), Rajahmundry of East Godavari District and it was

„Dismissed‟ on 04.06.2003. The revision-petitioner also filed

second appeal in S.A.No.969 of 2005 on the file of this Court and

it was also „Dismissed‟ on 18.03.2006. Consequently, the

respondent No.1 filed I.A.No.130 of 2009 in O.S.No.262 of 1988

under Section 144 of CPC for restitution of C schedule property

and the Trial Court passed the impugned Order, dated

19.01.2015, under section 144 CPC ordering restitution of the C

schedule property to the respondent No.1.

10. The revision-petitioner filed the present revision

challenging the said restitution Order, dated 19.01.2015 passed

under Section 144 of CPC.

11. An application for the relief of restitution is not an

application for execution of the appellate decree or order. It is an

application praying the Court to re-determine the rights of parties

to the application and to grant a decree to the applicant that he

is entitled to property under the decree or order already executed.

It amounts to a decree within the meaning of Section 2 (2) CPC.

12. A scrutiny of Section 144 of CPC would show as under:

(i) There should be a variation/reversal of a decree or an order under which a party has got the property/ benefit.

(ii) Such variation/reversal should result in entitling a party to a benefit by way of restitution or otherwise.

(iii) The effect of the order or restitution shall be such as to place the parties in the position which they would have occupied but for such decree or order which has been varied/reversed wholly or partially.

(iv) In so restoring the parties to their original position, the power of the Court extends to passing an order including an order for refund of costs, payment of interest, damages, compensation, or mesne profits; and;