Telangana High Court
Ashok Kumar Gupta vs Mamidi Prakash , Manchala Prakash on 27 March, 2025
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
CIVIL REVISION PETITION Nos.441, 456 AND 457 OF 2021
COMMON ORDER:
Since the lis involved in all these three Civil Revision
Petitions is intertwined and as the parties to the proceedings are
one and the same, all the Civil Revision Petitions are being
disposed of by this common order.
C.R.P. No.441 of 2021:
2. This Civil Revision Petition is directed against the order in
E.A. No.6 of 2021 in E.P. No.163 of 2015 in O.S. No.378 of 2010
on the file of Principal Junior Civil Judge, Nizamabad.
C.R.P. No.456 of 2021:
3. Civil Revision Petition No.456 of 2021 is filed against the
docket order dated 17.02.2021 in E.A. No.7 of 2021 in E.P.
No.163 of 2015 in O.S. No.378 of 2010 whereby the Court below
had dismissed the petition filed by the defendant/JDr under
Order XXI Rule 26 read with Section 151 of CPC to stay all
further execution proceedings pending consideration of
objections filed under Order XXI Rule 97 CPC which was the
subject mater of E.A. No.6 of 2021.
C.R.P. No.457 of 2021:
4. Civil Revision Petition No.457 of 2021 is filed against the
docket order dated 17.02.2021 in E.A. No.8 of 2021 in E.P.
No.163 of 2015 in O.S. No.378 of 2010 whereby the Court below
dismissed the petition filed by the defendant/JDr under Section
151 CPC to recall the warrant issued under Order XXI Rule 35
CPC by considering the objections filed under Order XXI Rule
97 CPC the subject matter of E.A. No.6 of 2021.
5. The plaintiff filed the subject suit for eviction of the
defendant from the suit schedule property bearing No.7-10-996
and recovery of arrears of rent.
6. Heard Sri V. Satyam Reddy, learned Counsel for the
revision petitioner and Sri Y.S. Yella Nand Gupta, learned
Counsel appearing for the respondent and perused the record.
7. The petitioner in all these Civil Revision Petitions is the
Judgment Debtor (JDr)/defendant in E.P. and the respondent
herein is the Decree Holder (Dhr)/plaintiff in E.P. No.163 of
2015.
8. The parties are referred to as per the position in the suit.
9. Civil Revision Petition No.441 of 2021 is filed aggrieved by
the order dated 17.02.2021 in E.A. No.6 of 2021 whereby the
underlying application filed by the defendant in the suit under
Order XXI Rule 97 CPC is dismissed.
10. The defendant in the suit filed the underlying application
raising objections to the show cause notice issued under Order
XXI Rule 35 CPC dated 05.01.2021 whereby the defendant who
is JDr in the aforesaid suit is directed to put the plaintiff/DHr
in possession of the suit schedule property to an extent of 440
square feet consisting of hall, one room and open place in front
of hall and room forming part of first floor of RCC roofed house
bearing No.7-10-996, RP road, Nizamabad city, admeasuring
440 square feet, pursuant to order dated 14.02.2020 in E.P.
No.163 of 2015 in O.S. No.378 of 2010.
11. The defendant in the aforesaid suit who is the J.Dr had
filed the underlying interlocutory application before the Court
below claiming that the schedule of property mentioned in the
notice issued under Order XXI Rule 35 CPC is subject matter of
a suit filed in O.S. No.61 of 2016 and, as such, the schedule of
property cannot be directed to be put in possession of the DHr
by delivering vacant possession.
12. It is also the further case of the defendant that the JDr is
tenant of the plaintiff/DHr in the suit bearing No.7-10-996,
while the defendant is also tenant of another property belonging
to one Krishna Rani bearing house No.7-10-993/1 and as such
both the properties are different and distinct and thus, the
petitioner/J.Dr cannot be directed to deliver the possession of
the schedule property to the respondent/DHr.
13. The petitioner/JDr further contended that the plaintiff
had filed the suit against the defendant/J.Dr in respect of
House bearing No.7-10-996, while the property of the plaintiff/
DHr is bearing No.7-10-910 which omission was not noticed by
him althrough this period and as such the schedule of property
for which the plaintiff/DHr obtained decree cannot be enforced.
14. Learned Counsel appearing on behalf of the defendant/
JDr would submit that the Court below without appreciating the
aforesaid fact had erroneously dismissed the underlying
interlocutory application whereby the objections under Order
XXI Rule 97 CPC have been raised and thus seeks for setting
aside the order passed in the underlying interlocutory
application.
15. Per contra learned Counsel appearing on behalf of
respondent/plaintiff/DHr would submit that the revision
petitioner/defendant/JDr has been protracting the litigation by
filing one application after the other, thereby depriving the
plaintiff/DHr from enjoying the fruits of the decree obtained by
him and the underlying interlocutory application is one of such
nature. It is also contended that the defendant/JDr having
failed in all his efforts in challenging the judgment and decree in
the suit vide O.S. No.378 of 2010 in the first appeal vide A.S.
No.22 of 2014, further the Second Appeal filed before the
Hon'ble High Court vide S.A. No.147 of 2019 being dismissed
vide order dated 07.06.2019 and further challenge before the
Hon'ble Supreme Court vide SLP(C) No.029298 of 2019 which
also ended in dismissal vide order dated 16.12.2019 has filed
the underlying I.As.
16. Learned Counsel for respondent would further contend
that on the judgment and decree passed in the suit O.S. No.378
of 2010 having attained finality, the plaintiff/DHr took steps to
enjoy the fruits of decree by filing execution petition vide E.P.
No.163 of 2015. It is contended by the respondent on the
aforesaid E.P. filed by plaintiff/DHr being ordered on
14.02.2020, the defendant/JDr had assailed the said order
before this Court by filing C.R.P. No.627 of 2020 which also
ended in dismissal on 27.11.2020.
17. Learned Counsel for the plaintiff/DHr would further
submit that the defendant/JDr in order to frustrate the decree
obtained by the plaintiff/DHr has filed the underlying
interlocutory application raising objections to the show cause
notice issued under Order XXI Rule 35 CPC, without any valid
basis.
18. It is also contended by the learned Counsel for respondent
that the claim of the defendant/J.Dr of the plaintiff/DHr having
obtained decree by mentioning a wrong house number, and the
fact having escaped the notice of the defendant/J.Dr althrough
this period from the year 2010 onwards even though he had
carried the matter upto the Supreme Court cannot be accepted
as a justifiable ground at this point of time.
19. It is further contended that the suit schedule property of
the suit vide O.S. No.378 of 2010 is only to an extent of 440
square feet out of 600 square feet, while the suit O.S. No.61 of
2016 which the defendant/J.Dr claims to have taken on rent
from one Krishna Rani which is also purchased by the plaintiff
subsequently and the subject matter of suit of the other suit is
only in respect of 160 square feet and thus, both the suit
schedule properties are entirely different and distinct and for
the said reason the objection of the defendant/ JDr that a suit
is pending cannot be accepted as valid objection.
20. Learned Counsel would further contend that the Court
below had considered all the aforesaid aspects while
adjudicating the underlying interlocutory application and had
rightly dismissed and seeks for sustaining the order dismissing
the objections filed by the defendant/JDr under Order XXI Rule
97 CPC.
21. I have taken note of the respective contentions urged.
22. At the outset it is to be noted that the present case is one
wherein no effort is left unturned by the defendant in the suit to
prevent the DHr from enjoying the fruits of the decree obtained
by him at all stages by making use of various provisions
contained in the CPC. (See: Ajit Singh (D) Thr. Lrs. and
others. V. Padma Bhandari (D) 1).
23. The respondent/plaintiff/DHr had filed the suit in the
year 2010 seeking for the relief of eviction of the defendant/JDr
1 MANU/SCOR/10891/2022
from the suit schedule property and to recover the arrears of
rent.
24. The suit schedule property is mentioned in the suit reads
as under:
"Suit Schedule Property:
The R.C.C. Roofed portion consisting of hall, one room and open place in
front of hall and room, forming part of house of 1st floor, front portion of building
H.No. 7-10-996, R.P. Road, Nizamabad City- 503001, extent of 440 square feet,
bounded as follows:
North: Tin shed of the plaintiff
South: Rashtrpathi Road
East: R.Shetty Wall, Building
West: Bhagya Laxmi portion and 10' wide Road to Kumargally."
25. In the aforesaid suit, the judgment was passed in favour
of the plaintiff/DHr on 23.06.2014 and a decree was also drawn
up. Upon the trial Court passing the judgment in favour of the
plaintiff/DHr, the defendant filed appeal vide A.S. No.22 of 2014
which also was dismissed by the first Appellate Court on
20.04.2019. On the Appellate Court dismissing the appeal filed
against the judgment and decree in O.S. No.378 of 2010, the
defendant/JDr filed Second Appeal before the High Court of
Telangana vide S.A. No.147 of 2019 and the same ended in
dismissal on 07.06.2019.
26. The defendant/JDr not being satisfied with the orders of
the trial Court, the First Appellate Court and the High Court in
Second Appeal choose to prefer SLP before the Apex Court
assailing the order of the High Court in Second Appeal and the
same also was dismissed by the Apex Court on 16.12.2019.
Thus, on the Apex Court dismissing the SLP preferred by the
defendant/JDr in the suit, in strict sense there should be no
impediment for enforcing the decree.
27. However, on the plaintiff/DHr filing Execution Petition for
enforcement of the judgment and decree of the trial Court which
has received stamp of approval upto the stage of Apex Court
vide SLP(C) No.029298 of 2019, the defendant/JDr filed
application under Section 47 of CPC to verify the jurisdiction of
the trial Court to pass decree in O.S. No.378 of 2010 which on
being dismissed was carried in revision to this Court which also
ended in dismissal.
28. Thereafter, the Executing Court had passed order dated
14.02.2020 in the E.P. No.163 of 2015 ordering Execution
Petition. Even at that stage after a decade from the date of
institution of the original proceedings for eviction, the
defendant/JDr did not relent and continued to persist with his
efforts to deprive the plaintiff/DHr from enjoying the fruits of
the decree obtained by him, as in response to the show cause
notice issued under Order XXI Rule 35 CPC for putting the
plaintiff/DHr in possession of the suit schedule property, the
defendant/JDr had filed objections by way an interlocutory
application under Order XXI Rule 97 CPC claiming that the suit
schedule property, is the subject matter of O.S. No.61 of 2016
filed by the plaintiff/DHr himself, without stating that the suit
schedule property of the aforesaid suit is only in respect of 160
square feet forming part of 600 square feet of House bearing
No.7-10-996, RP Road, Nizamabad city and thus, the second
suit O.S. No.61 of 2016 is no way connected to the execution of
the decree obtained by the plaintiff/DHr in respect of 440
square feet out of 600 square feet forming part of the same
house number i.e., 7-10-996.
29. The Court below while considering the underlying
interlocutory application filed by the defendant/JDr under
Order XXI Rule 97 CPC had considered the aforesaid aspect and
clearly noted the finding that the E.P. schedule property is to an
extent of 440 square feet out of 600 square feet, while the
schedule shown in O.S. No.61 of 2016 is the front portion of
building bearing House No.7-10-996 to an extent of 160 square
feet out of 600 square feet are not one and the same. Apart
from the above the Court also observed that the claim of the
defendant/JDr shows his ill-intention to obstruct the execution
proceedings.
30. The said finding recorded by the Court below in the light
of the aforesaid discussion, in the considered view of this Court
does not suffer from material illegality or perversity or to hold
that the Court below exercising jurisdiction that was not vested
in it, warranting interference by this Court in exercise of
revisionary powers under Section 115 of CPC. Thus, this Court
is of the view that the order of the Court below does not call for
any interference and thus, the revision has to fail.
31. Accordingly, the Civil Revision Petition No.441 of 2021 is
dismissed. The docket order dated 17.02.2021 in E.A. No.6 of
2021 in E.P. No.163 of 2015 in O.S. No.378 of 2010 is
sustained. No order as to costs.
32. In view of the order passed by this Court in Civil Revision
Petition No.441 of 2021 against the order in E.A. No.6 of 2021,
these Civil Revision Petitions i.e., C.R.P. Nos.456 and 457 of
2021 also fail and are accordingly dismissed.
Consequently, miscellaneous petitions, if any, pending
shall stand closed.
_____________________
T. VINOD KUMAR, J
Date: 27.03.2025
MRKR
