Dismissed

K Kannaiah v. K Munnaswamy(Died) and 4 Others

Andhra Pradesh HC15 Oct 2019CRP/6863/2018

Case brief

AI extract

What is this about?

The High Court dismissed the Civil Revision Petition challenging an order directing the Field Assistant to break locks to deliver properties. The Court held that boundary discrepancies explained by property change over time and identity disputes could not be raised for the first time during execution.

What did the court decide?

The Civil Revision Petition is dismissed; no costs awarded; all interim orders vacated.

K Kannaiah Vs K Munnaswamy(Died) and 4 Others — Execution and Attachment | Andhra Pradesh HC (2019)

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MVR,J

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C.R.P.No.6863 of 2018

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HON’BLE SRI JUSTICE M. VENKATA RAMANA CIVIL REVISION PETITION No.6863 OF 2018

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ORDER:

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This Civil Revision Petition is directed against order in E.A.No.179 of 2010 in O.E.P.No.79 of 2010 in O.S.No.138 of 2004 on the file of the Court of Additional Senior Civil Judge, Tirupati, dated 04.09.2018. The respondent in the above execution application is the petitioner. The decree-holders/petitioners therein are the respondents herein.

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The respondents filed the above execution application under Section 151 CPC to direct the Field Assistant (Amin) to break open the lock of the E.P. schedule property in executing the delivery warrant.

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Sri K.Munaswamy, (since dead), is described as first respondent in the C.R.P. The suit ended in favour of Sri Munaswamy and second respondent by the decree and judgment dated 13.08.2009 whereby the petitioner herein and two others were directed to hand over ‘A’ & ‘B’ schedule properties stated therein to them, and a permanent injunction was also granted against them restraining in any way interfering with these properties. However, the suit was dismissed against the third defendant therein, viz., Sri S.Subrahmanyam, S/o.Radhakrishnaiah, a resident of Nehru Street, Tirupathi. The execution petition was laid in execution of the above decree in respect of both the properties in terms of Order XXI Rule 35 CPC to direct the petitioner and another to deliver vacant possession of the same.

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The petitioner, as seen from the above decree remained ex parte and did not choose to contest the suit.

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When the executing Court ordered delivery of the property as requested by the respondents, by order dated 17.01.2017 directing to

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C.R.P.No.6863 of 2018

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take police aid, in case of any objection or obstruction by the petitioner and supporters. On 10.02.2017 when filed assistant (Amin) went to the properties mentioned in the E.P. schedule, the petitioner along with his tenants raised an objection, refusing to vacate the premises and left the above properties locking the doors.

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Thereupon, the respondents filed E.A.No.179 of 2010 complaining of such objections, requesting to direct the Field Assistant to break open the locks of the E.P. schedule property.

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The petitioner opposed the above application filing a counter in the executing Court mainly contending that order of the executing Court earlier passed was set aside by this Court in C.R.P.No.1171 of 2017 as well as order of granting police aid. It was also stated in the counter that delivery as such, cannot be directed without recording any findings by the executing Court on the observations of the Field Assistant.

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Considering the claims of both the parties, the executing Court passed impugned order directing delivery of the E.P. schedule property in favour of the respondents and further directing the Field Assistant to break open the locks of the doors, in the process.

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It is now contended on behalf of the petitioner that the Executing Court took upon itself to explain the discrepancy as to boundaries of the properties sought to be delivered, as was observed by the Field Assistant on the ground and as to the boundaries mentioned in the delivery warrant. It is also contended that in as much as identity of the property is in dispute, without properly assigning the reasons and without considering that the burden is on the respondents to explain in such circumstances, issuing delivery warrant by the executing Court, is improper. Thus contending, it is

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C.R.P.No.6863 of 2018

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requested to remand the matter for fresh consideration by the executing Court.

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When this CRP was listed on 26.08.2019, when submissions were made on behalf of the petitioner, none represented the respondents and the matter was reserved for orders.

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Now, the point for determination is - “Whether the objections raised by the petitioner are proper and if the executing Court properly appreciated the same, by ordering delivery of property?”

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The objection was raised on behalf of the petitioner on 29.03.2016 at the first instance, when the Field Assistant of the executing Court went to the E.P. schedule property to deliver it to the respondents herein pursuant to warrant of delivery. The delivery warrant was returned by the Field Assistant concerned pointing out certain discrepancies as to boundaries of ‘A’ and ‘B’ properties mentioned in the E.P. schedule. The discrepancy is with reference to the boundaries on the East and South.

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Another attempt was made on 10.02.2017, to execute the delivery warrant and then, as seen from the affidavit of the fourth respondent filed in the executing Court, as stated in para-5 above, the petitioner herein and others raised an objection and did not allow the Field Assistant to discharge his duty. It is also stated in this affidavit that the petitioner and his men proclaimed that they would not allow anyone to take possession of these properties even though the Field Assistant had shown them the warrant of delivery and requested to vacate the premises. Thereupon, as per the contents of this affidavit, the petitioner locked the doors of the house and left the premises. In those circumstances, according to the respondents, they required an order to break open the locks of the premises.

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C.R.P.No.6863 of 2018

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On behalf of the petitioner in the course of hearing in the CRP, a reference is made to the order of this Court in C.R.P.No.1171 of 2017 dated 21.06.2017. The above CRP was filed against the order of the executing Court dated 17.01.2017 in the same execution petition, which ordered issuance of delivery warrant to deliver E.P. schedule property to the decree-holder along with police aid, if necessary. This Court taking into consideration the report of the Field Assistant dated 01.04.2016, observed that the boundaries on the ground did not match and hence, held that issuance of delivery warrant was improper. Thus, this Court directed that the matter be reconsidered by the executing Court, to record findings in respect of the boundaries, on the observations recorded by the Field Assistant.

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In para-12 of the impugned order, the executing Court in this context, observed as under:

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“In the report of Field Assistant, it is clearly mentioned as follows:

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“"అచ్చట ఉన్న హద్దులను పరిశీలించి చూడగా, ‘A’ షెడ్యూలు నందు తూర్పు దక్షిణ హద్దులు సరిపోలేదు. ‘B’ షెడ్యూలు నందు స్థిరాస్తికి ఉన్న హద్దులు తూర్పు దక్షిణం హద్దులు తేడా ఉన్నది."

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The suit is of the year 2004 and the E.P. is filed by the Decree-Holder in the year 2010. The boundaries mentioned in the decree as well as execution petition may be changed due to lapse of time, it is quiet common that neighbours of the E.P. schedule property will not match the same boundary owners and we cannot expect from the neighbours that they cannot be sold the property to third parties. Hence, there is no dispute with regard to identity of the property. Since the identity of the property is not in dispute, the report filed by the Field Assistant

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dated 01.04.2010 is not tenable and he has to execute the warrant of delivery with the assistance of police and break open the locks of the E.P. schedule properties. Moreover, the executing Court cannot go beyond the decree and the decree has to be fulfilled by the JudgmentDebtors.”

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The reasons so assigned by the executing Court in this context have to be accepted. When the suit was laid in the year 2004, such boundaries were furnished. The delivery warrant was issued mentioning the same boundaries, which was attempted to be executed at the first instance on 29.03.2016 when the Field Assistant observed certain discrepancy in the boundaries. Even this discrepancy is not with reference to other two boundaries and is confined only to East and Southern boundaries. As rightly observed by the executing Court in the impugned order, possibility of change in the boundaries, can be perceived, in these circumstances.

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Further, the petitioner is trying to raise an objection as to identity of the property in dispute. He did not choose to contest the suit and remained ex parte. In such an event, as rightly observed by the executing Court, such question which predominantly falls within the domain of the trial process, cannot be raised for the first time in execution proceedings, particularly when a delivery of the property in question, is directed. The executing Court followed directions of this Court in C.R.P.No.1171 of 2017 as per the order dated 21.06.2017 and thus further steps were ordered in the Execution Petition for redelivery.

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Hence, finding no irregularity or illegality in the impugned order, when such direction was given by the Executing Court for breaking open the locks, the same has to be confirmed. The petitioner himself

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has invited such an order on account of offering resistance to the execution of the warrant of delivery illegally, without any basis and now, he cannot complain against it.

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In the result, the Civil Revision Petition is dismissed. No costs. All interim orders stand vacated. Miscellaneous Petitions, pending if any, shall stand closed.

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M. VENKATA RAMANA, J

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Dt:15.10.2019 Rns

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C.R.P.No.6863 of 2018

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

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CIVIL REVISION PETITION No.6863 OF 2018

Date:15.10.2019

Rns

MVR,J

C.R.P.No.6863 of 2018

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K Kannaiah v. K Munnaswamy(Died) and 4 Others

Case brief

What is this about?

What did the court decide?

K Kannaiah v. K Munnaswamy(Died) and 4 Others

Case brief

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What did the court decide?

What the court decided

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