T S Vasanthakesavulu vs K.Kamalamma And 2 Others
2021 Latest Caselaw 2297 Tel

         THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

           CIVIL REVISION PETITION No.5779 of 2017

ORDER:

This revision is filed challenging the order dated 14.09.2017 in

EP.No.28 of 2016 passed by the Junior Civil Judge, Cyberabad at

Hayathnagar, whereunder an execution petition filed seeking eviction

of judgment debtors No.2 and 3 was dismissed.

2. The petitioner/plaintiff instituted a suit in O.S.No.18 of 2008 on

the file of the Junior Civil Judge, Cyberabad at Hayathnagar, seeking

relief of perpetual injunction to restrain the respondents/defendants

from interfering with his peaceful possession and enjoyment of the suit

schedule A property bearing Plot No.21, admeasuring 217 sq. yards

and suit schedule B property bearing Plot No.19, admeasuring 183 sq.

yards both situated in Sy.No.30, Munganur Village, Hayathnagar

Mandal, Ranga Reddy District. The suit was dismissed under judgment

dated 28.09.2012. Aggrieved thereby, the petitioner/plaintiff filed an

appeal in A.S.No.354 of 2012 before the Principal District Judge,

Ranga Reddy District at L.B. Nagar. The appeal was allowed by

judgment dated 30.06.2015 thereby granting decree of injunction in

favour of the petitioner/plaintiff. The petitioner filed EP.No.28 of 2016

seeking eviction of the judgment debtors No.2 and 3 and to handover

physical possession of the suit schedule property to the petitioner.

By order dated 14.09.2017, the trial Court dismissed the petition as

not maintainable. It was observed by the trial Court that the decree is

silent with regard to delivery of possession and there was no direction

in the decree for demolition, eviction and delivery of possession.

Thus, the petitioner/plaintiff cannot seek for delivery of possession.

The scope of the suit is limited to injunction simplicitor.

3. Mr. T. Vasanthakesavulu, party-in-person, submitted that the EP

is maintainable under Order 21 CPC. Even assuming that none of the

provisions under Order 21 CPC is applicable, still the Court below

ought to have entertained the petition as being filed under Section 151

CPC. He further submitted that mere mentioning of wrong provision

cannot be a ground to dismiss the EP. He was dispossessed during the

pendency of the suit and entitled to delivery and restoration of

possession and the Court below ought to have entertained the

execution petition. He relied on a judgment of this Court in

JAMALUDDIN v. MIRZA QAUDER BAIG1 and a judgment of the

Punjab and Haryana High Court in MAM RAJ v. SABIRI DEVI2.

4. The record shows that respondent No.1 is a formal party;

the notice sent to respondent No.2 is served but none appeared on his

behalf and the notice sent to respondent No.3 returned unserved with

endorsement 'party left", hence, treated as deemed service.

5. Having considered the submissions of the party-in-person,

this Court is of the opinion that the execution petition filed by the

party-in-person is not maintainable, as there is no decree for recovery

of possession passed in favour of the petitioner. Order 21 CPC deals

with execution petitions. A specific provision under 21 Rule 32 CPC is

available for execution of an injunction decree. However, the said

provisions does not come into play in the instant facts and

circumstances of the case, as the petitioner is not seeking to invoke

the said provision to punish the judgment debtors by detaining them in

civil prison or attachment of their properties. In fact, the EP was filed

for restoration of possession. The executing Court is bound by the

decree. Thus, when an EP is filed, the executing Court will only have to

1995 (1) ALT 115

AIR 1996 P&H 96

act within the terms of the decree and cannot travel beyond the

decree. Hence, the reasons given by the Court below that there is no

decree of recovery of possession and as such, the EP for restoration of

possession is not maintainable cannot be said to be an improper order.

6. It is the case of the petitioner that he lost possession over the

suit property during the pendency of the suit and he is entitled to the

fruits of the decree and the decree cannot be allowed to become

redundant.

7. Having perused the record and upon hearing the petitioner,

this Court is of the opinion that since the petitioner is seeking relief of

restitution of possession thereby restoring the status quo ante as it

existed on the date of filing of the suit, such relief can be granted

under Section 144 CPC read with Section 151 CPC. The petitioner is

given liberty to file a necessary application under Section 144 read

with Section 151 CPC seeking restoration of possession, as decree of

injunction is passed in his favour (see NALLAPATI PANDURANGA

RAO v. VEMPATI VENKTATESHWARA RAO [2015 (4) ALD 54].

In such event, the Court below shall pass order on merits within a

period of two (2) months from the date of filing such application by

putting the respondents on notice and hearing all the parties.

The civil revision petition is disposed of. Pending miscellaneous

petitions, if any, shall stand closed. There shall be no order as to

costs.

__________________ B. VIJAYSEN REDDY, J August 6, 2021 DSK