Allowed

Vempuri Sowri Mohan Reddy v. Vempuri Hemalatha and 8 Others

Andhra Pradesh HC7 Nov 2022CRP/1593/2015

Case brief

AI extract

What is this about?

The single-judge High Court held that an execution petition for delivery of possession of a specific share is not maintainable without a final decree specifically allotting that share to the petitioners. The order of the trial court directing delivery was set aside for failing to consider the absence of such a specific final decree.

What did the court decide?

The Civil Revision Petition is allowed; the orders passed by the Principal Senior Civil Judge are set aside; consequential motions are closed and stay vacated.

Vempuri Sowri Mohan Reddy Vs Vempuri Hemalatha and 8 Others — Partition | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

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CIVIL REVISION PETITION No.1593 of 2015

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O R D E R:

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This Civil Revision Petition is filed by the petitioner/Respondent No.2/Defendant No.5 under Section 115 of Civil Procedure Code (in short CPC) against the Orders dated 19.03.2015 passed by learned Principal Senior Civil Judge, Nellore, in E.P.No.178 of 2011 in O.S.No.80 of 1991 wherein and whereby Court below allowed execution petition filed by the respondents and Ordered for delivery of execution petition schedule properties to the respondents.

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2. The respondents, who are Judgment Debtor Nos.3, 4, 6 and 8

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field execution petition before Court below praying the relief as follows:-

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“It is submitted that the suit for partition was decreed and preliminary decree was passed on 02.02.1993 allotting 6/13^th shares to the Decree Holders. Later on final decree was passed on I.A.N o.790 of 1993, dated 13.09.2000 in pursuance of the preliminary decree. Commissioner effected partition in respect of the schedule mentioned property in I.A.No.790 of 1993 as against the said order Judgment Debtor Nos.4 and 5 filed A.S.No.59 of 2000 on the file of the District Judge, Nellore, the said appeal was partly allowed on 19.07.2000. Thereafter as against the said Judgment, Judgment Debtor Nos.4 and 5 preferred S.A.No.821 of 2001 on the file of the High Court of

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Andhra Pradesh, Hyderabad. The said appeal was allowed on 22.03.2002 in part and remanded the matter to this Hon’ble Court. The Decree Holder submits in pursuance of the Order in S.A.No.821 of 2000 the Order in I.A.No.790 of 1993 was reopened and the said matter was disposed of on 06.02.2004 and as per clause iii of the decretal order in I.A.No.790 of 1993, dated 06.02.2004 the western portion as shown in the plan filed by the Advocate/Commissioner is allotted to 6/13^th share to the plaintiff.

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The petitioners humbly submit that the Decree Holders, who are children of the 2^nd Judgment Debtor. Vemupati Sundaramma, i.e., 1^st respondent in this E.P. have got filed E.P.No.52 of 2004 in O.S.No.80 of 1991 before this Hon’ble Court, regarding their 6/13^th share, and this Hon’ble Court was pleased to depute Court Ameen and delivered the possession of 6/13^th share to the Decree Holders on 14.04.2004 and the E.P. was closed with the said endorsement on 29.04.2004. Inspite of the request made by the petitioner herein, who are Judgment Debtor Nos.3, 4, 6 to 8 i.e., petitioners herein, the Court Ameen did not allot and deliver possession of the property to the petitioners regarding their 5/13^th share on the eastern side portion of E.P. schedule property. Hence, this E.P for justice as the 5^th Judgment Debtor. Vemupati Sowri Mohanarao, is in possession of the entire item No.2 of plaint A schedule property the petitioners/JDrs 3, 4 and 6 to 8 herein therefore pray that this Hon’ble Court may be pleased to depute the Court Ameen directing him deliver possession of the petitioners 5/13^th share, in the suit schedule property i.e., 5/7^th share, in item B property shown in the rough sketch of plaint A schedule with the help of the surveyor under provisions of Order XXI Rule 35 of C.P.C

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otherwise the petitioners put to serious loss and irreparable injury.

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We pray for order accordingly”.

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They pray for division of their 5/13^th share in the execution petition, which reads as under:-

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“Nellore District Registration, Nellore, Sub Registration, Nellore Town-walkers road, Mulapet, Municipal ward No.24, D.Nos.723 and 724 an extent of 75 ankanams including 61/2 ankanams of Madras terraced 3 ankanams of zinc sheeted shed 5 ankanams of thatched house and 3 ankanam of thatched shed therein:

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Bounded by:

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East : Public road leading to Church South : House of Mallela Ratnam, Narayana and Sripathi Venkatamma West : Municipal Donka North : Compound wall of Telugu Baptist Church”

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The petitioner herein who is Respondent No.2/Judgment Debtor

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No.5 filed counter before trial Court denying the contention of the respondents herein. It is the contention of the revision petitioner/R.2 that the respondents have not contested the suit or final decree proceedings due to that they are not entitled to file execution petition.

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He also stated that it was orally agreed between himself and respondents that the respondents shall not claim any share in Item

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No.2 of plaint schedule i.e., the eastern side portion of commissioners plan wherein he constructed a residential building and residing therein with an understating that the respondents shall take the landed property shown in ‘B’ and ‘C’ schedule in the plaint plan. It is also the contention of the revision petitioner that the respondents have filed execution petition for their alleged share in the item No.2 of plaint schedule property on the eastern side, he reserves his right to seek partition of his share in the landed property shown as ‘B’ and ‘C’ schedule in the plaint. He pleaded that execution petition is barred by limitation. The Court below after hearing both sides allowed petition filed by the respondents even at the stage of enquiry under Order XXI Rule 22 of C.P.C.

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Aggrieved by the orders passed by Court below, the petitioner herein filed present revision petition stating that orders passed by the Court below directing the delivery of possession of E.P. schedule property purportedly in execution of a preliminary decree in O.S.No.80 of 1991 illegal and vitiated by material irregularities. He submits that execution petition filed by the respondents is not maintainable in the absence of final decree allotting specific share to the respondents in the execution petition schedule property and Court below not correct in ordering delivery of execution petition schedule property directing the

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Court Ameen to cause division of the property and failed to consider that entire suit ‘B’ schedule property was given to the respondents in lieu of the respondents giving up their share in ‘A’ schedule house property. He prays to allow the revision petition.

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I have heard both sides.

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Learned counsel for the revision petitioner would submit that execution petition filed by the respondents, who are also the defendants in the suit is not maintainable without filing final decree for allotment of their share. He would further submit that the Court below without considering schedule shown in the execution petition ordered for delivery of property though there is no division of share and allotment of share to the respondents by the Court. He prays to allow the revision petition.

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Learned counsel for the respondents would submit that Court below right in ordering delivery of the property basing on Advocate/Commissioner report filed and in pursuance of the same, final decree has been passed in I.A.No.790 of 1993 in O.S.No.80 of 1991. He prays to dismiss the revision petition.

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Now the issue that emerges for consideration of this Court is:-

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“Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?”

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POINT:-

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It is not in dispute that the plaintiffs, who were not shown as parties to the execution petition filed by the respondents herein have filed suit against the petitioner herein and the respondents seeking partition of their 6/13^th share in the plaint schedule properties wherein learned subordinate Judge, Nellore, passed a decree as prayed for allotting 6/13^th share to the plaintiffs wherein there is no specific finding with regard to shares to be allotted to the petitioner and respondents herein. After that, the plaintiffs in O.S.No.80 of 1991 filed petition for passing of final decree under Order XX Rule 18 C.P.C for division of plaint schedule property and delivery of possession of their 6/13^th share. The said petition allowed by overruling objections raised by the petitioner herein and R.2 herein, who were shown as R.4, R.5 in the final decree petition filed by the plaintiffs in O.S.No.80 of 1991. It is ordered in I.A.No.790 of 1993 in O.S.No.80 of 1991 final decree petition dated 13.09.2000 that the report of learned Commissioner is accepted and objection raised by R.4, R.5 therein is overruled and final decree is passed allotting the property set out in annexure-I of the

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report of Advocate/Commissioner and final decree is ordered to engross on non-judicial stamp to be filed by the plaintiffs. Against the orders passed in final decree petition, the petitioner herein and R.2 who were R.4, R.5 in final decree proceedings have filed A.S.No.59 of 2000 on the file of II Additional District Judge, Nellore, which was allowed in part so far it relates to ‘B’ and ‘C’ schedule properties with a direction to re-entrust the warrant to Advocate/Commissioner to physically verify ‘B’ and ‘C’ schedule properties and divide the same as per the terms of the preliminary decree with the assistance of qualified surveyor, but dismissed the appeal in respect of ‘A’ schedule property. Aggrieved by the orders passed by the Appellate Court in A.S.No.59 of 2000, the petitioner herein and R.2 preferred Second Appeal No.821 of 2001 before this Court wherein after hearing submissions made by both sides, disposed of Second Appeal with a directions and set aside the Judgment and decree in I.A.No.790 of 1993 in O.S.No.80 of 1991 as confirmed in A.S.No.59 of 2000 and directed the trial Court to pass final decree afresh after considering the settlement arrived at and recorded in the Second Appeal. Then again learned Principal Senior Civil Judge, Nellore, after hearing both sides passed final decree on 06.02.2004 in I.A.No.790 of 1993 in O.S.No.80 of 1991 wherein it is observed at Para No. “11”, which reads as under:-

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“There was an understanding before the Hon’ble High Court that parties agreed to exchange their plots which was originally allotted by this Court basing on the report of the Advocate/Commissioner. Originally, the western plot was allotted towards 7/13^th share of the respondents. After demarcating the share of the second respondent, respondents 3 to 8 are entitled to the remaining western side plot. The eastern side portion was originally allotted to the petitioners. As per understanding reached before the Hon’ble High Court, the eastern side plot is to be allotted to the respondents 3 to 8. The western side plot excluding 1/13^th share allotted to the second respondent is now to be allotted to the petitioners as per understanding. Thus, the objections raised by the 5^th respondent are not sustainable in the light of the observations made by the Hon’ble High Court in S.A.No.821 of 2001. Final decree is to be passed in terms of preliminary decree accordingly.”

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On perusal of findings of the trial Court in I.A.No.790 of 1993 in O.S.No.80 of 1991, dated 06.02.2004, which shows that the eastern

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side plot is allotted to the respondents 3 to 8 wherein it is not specifically allotted separate share to the respondents herein, who filed execution petition in pursuance of the said final decree. A copy of the decree in I.A.No.790 of 1993 in O.S.No.80 of 1991 is also made available which shows that the eastern portion as shown in the plan filed by the Advocate/Commissioner is allotted towards 6/13^th share of respondents 3 to 8/D.3 to D.8 i.e., petitioner herein and respondents

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together. There is no direction in the said final decree, which portion is allotted to the respondents towards their 5/13^th share and there is no division among respondents. Though final decree passed by Principal Senior Civil Judge, Nellore, as per directions of this Court respondents herein instead of filing final decree petition have chosen to file execution petition for delivery of 5/13^th share to them on eastern side portion. The plaintiffs therein already filed execution petition in E.P.No.52 of 2004 for delivery of share 6/13^th and the same was delivered to them on 14.04.2004. The orders passed by Court below shows that which disbelieved oral understanding between revision petitioner and the respondents in respect of landed property and house property as pleaded by the petitioner and ordered for delivery of 5/13^th share to respondents in the E.P. schedule property. Learned trial Judge failed to consider that there is no final decree allotting specific shares to the respondent as now the dispute is between Judgment Debtors as Decree Holder in O.S.No.80 of 1991 have already taken possession of their 6/13^th share by filing execution petition, which was also closed on 29.04.2004 itself. The final decree passed by Principal Senior Civil Judge, Nellore, dated 06.02.2004, which shows that 6/13^th share is allotted to the petitioner and the respondents together and there is no division of shares among them. For which the respondents ought to have filed petition for passing of final decree allotting specific share to

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them if they are so advised but instead of that they filed execution petition for delivery of their 5/13^th share excluding the share of the petitioner herein. There is no final decree in favour of the respondents allotting 5/13^th share to them, which shows that execution petition filed by the respondents for delivery of 5/13^th share is without final decree in their favour. Therefore orders passed by Court below without considering the said aspect is not tenable either in law or on facts warrants interference of this Court under Section 115 of C.P.C.

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In the result, the Civil Revision Petition is allowed. The orders passed by Principal Senior Civil Judge, Nellore, in E.P.No.178 of 2011 in O.S.No.80 of 1991 are hereby set aside. No order as to costs.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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The interim stay if any granted is stand vacated.

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___________________________ JUSTICE BANDARU SYAMSUNDER

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Date :07.11.2022 Chb

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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

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C.R.P.No.1593 of 2015

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Date : 07.11.2022

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Chb

Vempuri Sowri Mohan Reddy v. Vempuri Hemalatha and 8 Others

Case brief

What is this about?

What did the court decide?

Vempuri Sowri Mohan Reddy v. Vempuri Hemalatha and 8 Others

Case brief

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