R.A. Dayanand vs M/S. Ashoka Chambers Owners ...
2022 Latest Caselaw 5702 Tel

         THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

           CIVIL REVISION PETITION No. 1785 of 2021


ORDER:

This Civil Revision Petition is filed against the orders of the trial

Court in E.P.No.3 of 2018 in I.A.No.298 of 2013 in O.S.No.872 of

2013, dated 09.09.2021.

2. O.S.No.872 of 2013 is filed by the plaintiffs/revision petitioner

against M/s. Ashoka Chambers Complex Building, represented by its

Secretary for mandatory injunction against the defendants Nos.1 to

13/respondents herein to restore status-quo-anti of electric transfer

and mandatory injunction directing the defendant No.3 for removal or

demolition of illegal construction made by the legal representatives of

defendant Nos.6 & 7 colluding with defendant Nos.1, 2 & 5 in the "B"

schedule property and for grant of perpetual injunction against the

defendants 1, 5 and legal representatives of defendant No.6 from

interfering in the enjoyment of common passage for parking and also

to direct the defendant Nos.1,2 and 5 to render true accounts

pertaining to the maintenance of the Ashoka Chambers building and

for perpetual injunction against the defendant Nos. 1, 2 to 5, legal

representatives of the defendant No.6 & 7 from using any portion of

front open space of plaintiffs premises situated in Ashoka Chambers,

Adarshnagar, Hyderabed, and to award damages to a tune of

Rs.2,75,000/- for breach of Easementary Rights and causing damages

to the schedule property, including common areas, common parking,

common passage, cellar portion and common amenities etc., for day-in

and day-out".

3. During the pendency of the suit proceedings, I.A.No.298 of 2013

is filed under Order 39 Rule 1 & 2 of CPC for granting of temporary,

mandatory injunction in favour of the petitioners and against the

defendants 1 to 7 to remove the entire obstruction including front side

of two rooms of the cellar portion by demolishing illegal construction

and to make entire cellar portion as parking place only for the purpose

of parking of the vehicles of owners of occupants of the portion in

Ashoka Chambers Complex Building. Petitioner Nos.1 and 2 herein

are the absolute owners and possessors of shop No.3 on the ground

floor of Ashoka Chambers Complex Building, facing to road side of the

complex with shutters open one towards the eastern side of the main

road and another on the northern side of the common passage of the

said complex. The petitioners purchased shop premises under

registered sale deed vide document No.1555/91, dated 24.07.1991.

4. The Trial Court considering the arguments of both sides held

that there is prima facie case and balance of convenience is in favour

of the petitioners herein and granted temporary injunction in the said

interlocutory application.

5. The decree holders/petitioners herein filed E.P.No.3 of 2018

before the VI Junior Civil Judge, City Civil Court, Hyderabad, under

Order 21 Rule 32 of CPC against the Judgment debtor Nos.1 to 13,

seeking for removal of front side two rooms of the cellar portion by

demolishing the illegal construction and to make the entire cellar

portion as parking space.

6. The decree holders/petitioners herein stated that judgment

debtor Nos. 1 to 13/respondents herein did not comply with the orders

passed in I.A.No.298 of 2013 in O.S.No.872 of 2013, dated 03.06.2015

and they did not prefer any appeal against the orders passed in the

said application and no stay orders are pending. After passing of the

order in the said IA the respondent No.6 herein was expired on

20.08.2015 leaving behind the respondent Nos.8 to 12 herein as legal

representatives and therefore, the decree holders/petitioners herein

requested the Court to issue warrant directing the bailiff to remove the

entire illegal unauthorized construction including front side rooms of

the cellar portion by demolishing the illegal construction and to

restore entire cellar portion as parking place only for the purpose of

parking of the vehicles of owners and occupants of the portion of

Ashoka Chambers Complex Building.

7. In the counter filed by the judgment debtor Nos.8 to 12, they

stated that execution petition filed by the decree holders/petitioners

herein is not maintainable and hence, they have preferred an

application along with an application to condone the delay in

CMA.Sr.No.10900 of 2018 and it is still pending before the learned

Chief Judge, City Civil Court, Hyderabad. The relief sought for by the

decree holders/petitioners herein in the execution petition cannot be

executed as the mandatory injunction and orders cannot be passed in

interim application and interim orders cannot be in the contravention

with the main relief in the suit. If the EP is executed, suit becomes

infructuous. Further, if the EP is executed and if the demolition is

carried out and if the suit is dismissed on merits after conclusion of

trial, judgment debtors cannot be put back to the possession and

irreparable loss and injury would cause to the respondent Nos.8 to 12

herein. They further stated that if the constructions are made against

the sanctioned plan, the respondent corporation is at liberty to

proceed against the respondent Nos.1 to 7 as per due process of law. It

is for the decree holders/petitioners herein to prove that constructions

are made in violation of the sanctioned plan. Decree

holders/petitioners herein are also having one mulgi in the schedule

mentioned apartment and hence, requested the Court to dismiss the

execution petition. The Trial Court considering the arguments of both

sides dismissed the execution petition. Aggrieved by the said order,

this Civil Revision Petition has been preferred by the plaintiffs.

8. On a perusal of the records, it is seen that the Trial Court cannot

go behind the decree but the trial Court erroneously dismissed the

execution petition. Execution Petition was rightly filed by the revision

petitioners in pursuant to the orders passed in I.A.No.298 of 2013,

dated 03.06.2015 within three years. When there is no specification of

the date to commence execution as per the Article 135 of the limitation

Act, in view of the dismissal of the I.A. valuable right of the revision

petitioners was put at jeopardize. Execution Court does not have

appellate jurisdiction or original jurisdiction and hence, the order of

the trial Court is ill founded and unknown to CPC, where an order was

passed considering Exs.P1 to P19 on merits. The trial Court, heavily

swayed away by submissions of the learned counsel for the judgment

debtors, had dismissed the interlocutory application in I.A.No.2551 of

2018 in CMA SR.NO.10903 of 2018 on 17.12.2018 itself. Therefore,

they have requested the Court to set aside the order.

9. The judgment debtors/respondents herein mainly contended

that as suit itself is filed for mandatory injunction, if the orders in I.A.

are executed, it amounts to dismissal of the suit as infructuous. In

fact, the Trial Court also convinced with the arguments of the

judgment debtors/respondents herein in and dismissed execution

petition.

10. Admittedly, the suit is filed for granting of mandatory injunction

and for perpetual injunction but during the pendency of the suit,

I.A.No.298 of 2013 was filed for removal of the front side two rooms of

the cellar portion by demolishing illegal construction and to make

entire cellar portion as a parking place. The said I.A.No.298 of 2013

was allowed and thereafter execution petition was filed and after

hearing both sides, it was dismissed on the ground that if EP is

executed suit becomes infructuous and nothing remains in the suit.

Moreover, decree holders/petitioners herein did not prove that

construction is made in violation of the sanctioned plan.

11. I.A.No.298 of 2013 was filed for mandatory injunction, the

injunction was granted in favour of the petitioners and the said order

was never challenged by the respondents and it attained finally as

such the petitioners herein/decree holders have also filed EP for

execution of the said orders. Therefore, the order of the trial Court is

not executable, is not tenable.

12. As rightly pointed out by the decree holders/revision petitioners,

executing court cannot go beyond the decree and the arguments of the

learned counsel for the judgment debtor's/respondents herein, if the

main suit is disposed in favour of the judgment debtors/respondents

herein irreparable loss would be caused to the plaintiffs in the suit, if

at all the order in I.A.No.298 of 2013 is executed prior to the disposal

of the suit no doubt orders were passed in the interlocutory

application during the pendency of the suit proceedings, but as the

appeal was not preferred against them, they were made absolute.

13. The respondent in the Trial Court might have objected strongly

for the issuance of the mandatory injunction in favour of the decree

holders/revision petitioners herein at interlocutory stage but they

failed to do so. When the orders were passed in I.A., the judgment

debtors/respondents herein made an effort to prefer an appeal but

there was a delay of three years. Though petition is filed before

learned chief justice, City Civil Court for condonation of the delay, it

was dismissed. As such, the orders passed in I.A. attained finality and

the decree holders/revision petitioners filed execution petition for

execution of the orders of the Trial Court as there was no stay granted

during the pendency of the proceedings, the Trial Court ought to have

granted mandatory injunction as sought for in the application but

without appreciating the facts on record in proper manner dismissed

the said execution petition and the said order by the trial Court is

erroneous and the same is liable to be dismissed.

14. In the result, CRP is allowed by setting aside the orders passed

in E.P.No.3 of 2018 in I.A.No.298 of 2013 in O.S.No.872 of 2013,

dated 09.09.2021, by the learned VI Junior Civil Judge, City Civil

Court, Hyderabad. No costs.

15. As a sequel, miscellaneous petitions if any shall stand closed.

_________________________ JUSTICE P.SREE SUDHA DATED 08.11.2022 Dua

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CIVIL REVISION PETITION No. 1785 of 2021

DATED 08.11.2022

Dua