Viratapu Sesharatnam vs Kosuri Srinivasa Rao
2023 Latest Caselaw 5019 AP

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                                                                 CMR, J.
                                                      CRP No.6754 of 2018




THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

            Civil Revision Petition No.6754 of 2018

ORDER:

This Civil Revision Petition is preferred against the order,

dated 26.09.2018, passed in E.P.No.23 of 2012 in O.S.No.120

of 2000 on the file of the Principal Senior Civil Judge, Kovvur,

whereby the E.P. filed under Order XX1 Rule 22 and Rule 35

CPC for delivery of the E.P. schedule property in terms of the

preliminary decree and the final decree, was allowed.

2) Heard learned counsel for the petitioners and learned

counsel for the respondents.

3) For the sake of convenience, the parties will be referred as

they are arrayed in the plaint.

4) The revision petitioners are the judgment debtors in

E.P.No.23 of 2012. The decree holder has filed the Suit for

partition. The judgment debtors are only the third parties to the

joint family. As defendants in the Suit, they have taken a plea

in the Suit that an agreement to sell was executed in their

favour by the family members of the plaintiff and as such, they

got a right in the said property covered by Ex.B.1 agreement to

CMR, J.

CRP No.6754 of 2018

sell and the same cannot be partitioned. But, no suit for

specific performance was filed by them and no decree was

passed in their favour and no registered sale deed was also

executed in their favour. Therefore, the trial Court rejected

their plea and decreed the Suit by passing a preliminary decree.

A final decree was also subsequently passed.

5) The first appeal preferred against the preliminary decree

was dismissed confirming the judgment of the trial Court. The

second appeal preferred there against was also dismissed

confirming concurrent findings of both the trial Court and the

first appellate Court.

6) The main ground on which the E.P. was opposed is that

the recovery of the possession of the plaint schedule property

cannot be ordered in a suit for partition and the plaintiffs have

to file a separate Suit for recovery of possession against the

revision petitioners.

7) The said plea was taken in the trial Court as well as in the

two appellate Courts i.e. the first appellate Court and the

second appellate Court. All the Courts have rejected the said

plea and held that possession can be ordered. Therefore, the

CMR, J.

CRP No.6754 of 2018

said finding became final in the Second Appeal. The revision

petitioners did not further challenge the same as per law.

Therefore, they cannot now raise the same pleas in the

execution proceedings and prevent the execution of the decree

and delivery of possession of the said property covered by

Ex.B1. It is not open to them to oppose the E.P. on the

grounds, which are already resolved and adjudicated in the

Suit, which became final.

8) Therefore, no valid grounds are emanating from the

record warranting interference of this Court in this revision

with the impugned order. The impugned order is perfectly

sustainable under law.

9) Resultantly, the Civil Revision Petition is dismissed. No

costs.

Consequently, miscellaneous applications, pending if any,

shall stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:16.10.2023.

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