Partly allowed

Venna Suri Babu v. Takasi Venkata Ramesh Babu

Andhra Pradesh HC13 Feb 2020CRP/2450/2019

Case brief

AI extract

What is this about?

The High Court dismissed civil revision petitions challenging execution orders. The bench held that the Trial Court erred by issuing orders to remove projections and break locks without adjudicating the pending claim of a stranger involved in the dispute, violating Chapter XXI of the CPC.

What did the court decide?

Impugned orders were set aside. Matters remanded to the Trial Court to dispose of the same in accordance with the law, considering the pending claim petition.

Venna Suri Babu Vs Takasi Venkata Ramesh Babu — Execution and Attachment | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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C.R.P. Nos. 2449, 2450, 2459 and 2463 of 2019

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COMMON ORDER:

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The Orders passed in all these four [04] Civil Revision Petitions are inter connected. The same are disposed of by this Common Order.

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Assailing the docket order dated 19.3.2019 passed in E.A. No.87 of 2019 in E.P. No.9 of 2019 in O.S. No.526 of 2015 on the file of the III Additional Senior Civil Judge, Vijayawada, Krishna District, wherein application filed by the Decree Holder to break open the locks and deliver the possession to D.Hr. from J.Drs. was allowed, the Civil Revision Petition No.2449 of 2019 is filed by the third party under Section 115 of the Code of Civil Procedure.

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Assailing the docket order dated 19.3.2019 passed in E.A. No.86 of 2019 in E.P. No.9 of 2019 in O.S. No.526 of 2015 on the file of the III Additional Senior Civil Judge, Vijayawada, Krishna District, wherein application filed by the Decree Holder to grant Police aid to execute warrant and recovery of vacant possession was allowed, the Civil Revision Petition No.2459 of 2019 is filed by the third party under Section 115 of the Code of Civil Procedure.

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Assailing the docket order dated 27.3.2019 passed in E.A. No.105 of 2019 in E.P. No.9 of 2019 in O.S. No.526 of 2015 on the file of the III Additional Senior Civil Judge, Vijayawada, Krishna District, wherein application filed by the Decree Holder to grant permission for removing/demolition of the unauthorized constructions made in the schedule property was allowed, the Civil Revision Petition No.2450 of 2019 is filed by the third party under Section 115 of the Code of Civil Procedure.

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Assailing the docket order dated 27.3.2019 passed in E.P. No.9 of 2019 in O.S. No.526 of 2015 on the file of the III Additional Senior Civil Judge, Vijayawada, Krishna District, wherein the trial court granted permission to remove the projections extended into the schedule property so as to deliver vacant possession to Decree Holder, the Civil Revision Petition No.2463 of 2019 is filed by the third party under Section 115 of the Code of Civil Procedure.

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The 1^st Respondent/Plaintiff filed O.S. No. 526 of 2015 for declaration and recovery of vacant possession of Suit Schedule Property. By its Judgment, dated 05.12.2018, the Suit was decreed with costs. Further, a direction was given to the Defendants to deliver vacant possession of the Suit Schedule Property to the Plaintiffs within a period of three [03] months from the date of Judgment and Decree.

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Originally, the Decree Holder/1^st Respondent, by name, Takasi Venkata Ramesh Babu filed O.S. No. 526 of 2015 before the III Additional Senior Civil Judge, Vijayawada, to declare his right over the Suit Schedule Property and for recovery of possession over the Suit Schedule Property from Defendant No. 1 to 3 therein. By a Judgment, dated 05.12.2018, the Court decreed the Suit declaring the Plaintiff as the absolute owner of the Suit Schedule Property and entitled to be in its possession, thereby, directing the Defendants to vacate and deliver vacant possession of Schedule Property to the Plaintiffs within three [03] months. Thereafter, the Plaintiff filed E.P. No. 09 of 2019 in the said O.S. requesting the Court to issue warrants to Judgment Debtors under Order XXI Rule 35 and 36 of C.P.C., for delivery of vacant possession of the Schedule Property.

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There is no material on record to show as to whether any Appeal has been filed against the said Judgment and Decree, though, the time granted to deliver vacant possession of Suit Schedule Property was expired on 05.03.2019. The Defendants did not vacate the same. The request made by the Defendants to vacate the Suit Schedule Property and deliver vacant possession was refused by the Defendants. Left with no other option, the Plaintiff filed E.P. No. 9 of 2019 for recovery of the possession. On 14.03.2019, the Trial Court was pleased to issue “Delivery Warrant”.

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On 15.03.2019, the Plaintiff accompanied with the Process Server went to the said premises to execute warrant. He noticed the Judgment Debtors constructed some unauthorized constructions after passing of the Decree. When the Process Server tried to remove them for delivering vacant possession, the Judgment Debtors and their men made a big galata and resisted the action of the Process Server in executing the Delivery Warrant. Hence, the Process Server returned the Delivery Warrant due to objections by the Judgment Debtors and their men. At that point of time, four applications came to be made. E.A. No. 105 of 2019 was filed by the Plaintiff seeking permission for removing/demolishing the unauthorized construction made in the Suit Schedule Property. E.A. No. 112 of 2019 is filed to issue warrant under Order XXII Rule 36 of C.P.C. E.A. No. 86 of 2019 is filed by the Decree Holder for grant of police protection to execute the Warrant and recovery of vacant possession of the Suit Schedule Property and E.A. No. 87 of 2019 was filed requesting the Court to make an enquiry and issue a direction to the Process Server for putting the Plaintiff in possession of the same after removing the obstructions and breaking open the locks. It is also to be noted here that, C.R.P. No. 2449 of 2019 and C.R.P. No. 2450 of 2019 are filed against the Orders passed in E.A. No. 87 of 2019 and E.A. No. 105 of 2019 by the 3^rd Party, while C.R.P. No. 2463 of 2019 and C.R.P. No. 2459 of 2019 is filed against the Orders

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passed in E.P. No. 9 of 2019 and E.A. No. 86 of 2019 by the Decree Holder for police aid and for the execution of the warrant.

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Sri. Sreenivasa Rao Velivela, learned Counsel for the 3^rd party mainly submits that, the Trial Court erred in removing sheds with the help of Police aid and breaking open the locks in the E.P. schedule property, which is beyond the decree. More so, when the claim petition filed in E.A. No. 112 of 2019 is pending adjudication before the said court. According to him, the 3^rd party is in possession of E.P. schedule property and the same is also subject matter of dispute in O.S. No. 62 of 2010, which is a Suit filed by one Manohar Lal Ladda and two others against the Claim Petitioners and Respondent No. 2 to 4 for recovery of possession of 175 square yards which came to have purchased on 19.07.2008 and having regard to the consequential orders passed thereof.

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On the other hand, Sir. A. Tulsi Raj Gokul, learned Counsel for the decree holder while relying upon the Judgment of this Court in P.Venkamma v. Sayana Venkata Rathnam¹ , would contend that, the very revision is not maintainable and that an Appeal ought to have been filed against the Order impugned. He further submits that the Order of the Trial Court in passing the impugned orders

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1 2001 (3) ALD 518

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cannot be said to be illegal or improper, when no appeal is filed against the said Judgment.

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A perusal of the record would show that, Manohar Lal Ladda and his two brothers filed O.S. No. 62 of 2010 on the file of II Additional District Judge, Vijayawada against the Petitioner in C.R.P. No. 2449 of 2019 and C.R.P. No. 2450 of 2019 and three others for recovery of possession of Plaint Schedule Property therein and for eviction of the defendants from the said property. The Suit Schedule Property in the said Suit relates to 175 square yards with tin sheeted shed therein out of 350 square yards in door no. 22-15-81, Dry Block No. 11/1, Town Survey Revenue Ward No. 16, Block No. 9, N.T.S. No. 14, Old Municipal Ward No.23, situated at Bhanu Nagar, Jagiru Machavaram, Vijayawada City. The property in said Suit and the schedule property in O.S. No. 526 of 2015, which is subject matter of dispute in the present C.R.Ps. is one and the same. The Suit filed by Manohar Lal Ladda and others against the Petitioners and others was decreed on 09.11.2015. Challenging the same, the Petitioner herein filed A.S. No. 528 of 2016 before the Hon’ble High Court. Along with the said Appeal, he also filed A.S.M.P. No. 1157 of 2016 seeking stay of execution of the decree in O.S. No. 62/2010. By an Interim Order, dated 04.08.2016, the Court granted ‘interim stay’ as prayed for subject to deposit of costs within a period of four weeks and on such deposit, the plaintiffs were

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entitled to withdraw the same without furnishing any security. It is said that, without making the Petitioner as a party to any of the proceedings, the Orders impugned came to be passed.

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According to the Petitioner, on 15.03.2019 by 3.00 PM, the 6^th Respondent along with 10 others raided against the Petitioner while he was working in the E.P. schedule property. They forcibly tried to evict him. It is said that, when the Order of the High Court of ‘stay’ was shown, they went back saying that they will come again. On the very next day at 10.00 AM, all of them approached and in-spite of the Petitioner resisting the effort made by them, they forcibly tried to evict him out of the property, which is in his possession. But, however, interference of the neighbours, made them to leave the place. On coming to know about the orders passed by the Court in O.S. No. 526 of 2015, he approached his Counsel and moved these applications to set-aside the Orders passed in E.P. No. 9 of 2019 and the consequential orders on the ground that E.P. proceedings are null and void and same are hit by doctrine of lis pendis under Section 52 of Transfer of Property Act, in view of the orders passed in the Appeal by the High Court.

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The issue is, whether the Trial Court was justified in passing the orders when the claim petition filed by the

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Petitioner basing on an Order passed by the Appellate Court at his instance is brought to the notice of the court?

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Without considering the objections raised in the claim petition, impugned Orders which came to be passed on 19.03.2019 and 27.03.2019 are bereft of any reasons. It would be useful to extract the Orders passed by the Trial Court, which are as under:-

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Docket Order EA 87 of 2019 EP 9 of 2019 OS 526 of 2015

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U/Order 21 R 35 (3) CPC DHr prays to break open of locks and delivery the possession to DHr from JDrs.

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18-3-19 Heard, Permitted. Sd/- xxxxxxx 19/3.

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“ C.R.P. No. 2450 of 2019

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Docket Order EA 105 of 2019 EP 9 of 2019 OS 526 of 2015

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U/Order 21 R 35 (3) & 151 CPC DHr prays to grant permission for removing / demolition the unauthorized constructions made in the schedule property in the interest of justice and equity.

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27-3-19

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Heard. Petitioner says that some part of projection of shed of JDr is projecting into the schedule property, as he is required to take vacant possession of the property as per decree, the said projections have to be removed, and even the Amin Report discloses about the said projection of shed into schedule property, as Rule 35(3) CPC empowers the court to permit the DHr to do acts necessary for taking delivery of possession apart from break open. This .... to permit the DHr to remove the illegal projections into the schedule property, can be permitted, accordingly petition is allowed. Sd/- xxxxxxx 19/3.

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“ C.R.P. No. 2463 of 2019

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Docket Order EP 9 of 2019 OS 526 of 2015

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U/Order 21 R 35 (3) CPC

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DHr prays to order to recover / deliver the vacant possession of the schedule property to DHR for realization of decree. No stay. No Appeal. EP is within 2 years.

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SFO 14/3/2019 Issue Delivery Warrant. Call on 1-4-19. Sd/- xxxxxx 19/3

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1-4-2019

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Delivery Warrant returned as objected to execute. 19-3-19 – Advance to this . delivery warrant returned as objected to execute. EA 85/19 is allowed. EP advanced to today. EA 86 of 19 and EA 87 of 19 are allowed permission for break open and police aid. Hence issue fresh delivery warrant accordingly. Call on 1-4-19.

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Sd/- xxxxxxx 19/3.

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1-4-19: Delivery warrant not yet returned.

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EA 101/19 is allowed. EP advanced today permission u/Or.21 Rule 35 (3) CPC has being permission to demolish the projections into the schedule of the shed of JDr. Hence permission is granted to remove the projections extended only into the schedule property so as to deliver vacant possession to him and not any other structures / projections with the help of Amin. Call on 1-4-19.

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Sd/- xxxxxxx 27/3

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1-4-19.

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Warrant returned as Police men is not available due to elections. EA 112 of 19 is pending. Call on 17-4-2019.

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Sd/- xxxxxxx 1/4.

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A perusal of the Orders clearly indicates that the same are bereft of any reasons and the objections raised by the 3^rd party claim petitioners were never considered.

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Whether, an Appeal would lie or Revision against the said orders is one thing, but, the requirement of law, namely, considering the objections raised in the manner in which it has to be dealt with was not followed by the Trial Court.

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In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal² the Hon’ble Apex Court after referring to Order XXI Rule 97, 98, 99 and 101 of C.P.C, held as under:

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(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI Rule 35, then the decree-holder has to move an application under Order XXI Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order XXI Rule 97 sub-rule (2) read with Order XXI Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order XXI Rule 98 sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.

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(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order XXI Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order XXI Rule 98 subrule (1) CPC the Executing Court can direct the stranger applicant under

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2 (1997) 3 SCC 694

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Order XXI Rule 99 to be put in possession of the property of if his application is found to be substanceless it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order XXI Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order XXI Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order XXI Rule 101”.

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From the above, it is very evident that, if there is any resistance offered by a purported stranger to the decree and which comes to the notice of the Executing Court and noted by the decree-holder, the remedy available is under Order XXI Rule 97 sub-rule (1) and one cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order XXI Rule 35 with the help of police force, which as held by the Hon’ble Apex Court, amount to circumventing the procedure laid down under Order XXI Rule 97. The Hon’ble Apex Court in the very same judgment held that, once such an obstruction is on the record, adjudicating upon the controversy between the parties is a must and only after such adjudication the Court can proceed further in putting the decree holder in possession.

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As seen from the orders passed, though a claim petition is said to have been made on 20.03.2019 before the very same Court, it appears that the same was not taken into consideration while passing the impugned Orders.

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Having regard to the above, the Orders under challenge are set-aside and matters are remanded back to the Trial Court to dispose of the same in accordance with the law. No order as to costs.

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