Allowed

J Siva Shankar v. Alluri Sreepathi

Andhra Pradesh HC12 Dec 2022CRP/5975/2018

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of an execution petition seeking rectification of a survey number in a sale deed. The court held that an execution court cannot refuse to execute a valid decree based on potential prejudice to third parties and must proceed with execution as per the decree.

What did the court decide?

The impugned order dismissing the execution petition is set aside, and the execution court is directed to proceed with the execution of the decree.

J Siva Shankar Vs Alluri Sreepathi — Specific Performance | Andhra Pradesh HC (2022)

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THE HON’BLE Ms. JUSTIC B.S.BHANUMATHI

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Civil Revision Petition No.5975 of 2018

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ORDER :

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This revision petition, under Section 115 CPC, is filed against the order, dated 09.07.2018, dismissing E.P.No.298 of 2017 in O.S.No.7 of 2017 on the file of the Court of Principal Junior Civil Judge, Dhone, filed under Order XXI Rule 32 and Section 151 CPC asking the execution Court to execute a registered rectification deed to the registered sale deed, bearing Document No.1221/2013, dated 30.03.2013, by rectifying the survey number as Sy.No.242/2B instead of Sy.No.243/2B in furtherance of the decree, dated 03.08.2017, passed in the suit O.S.No.7 of 2017.

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2 . Heard Sri Vivekananda and Sri A. Sai Raghava , learned counsels representing Sri V.D.Gouda, learned counsel for the revision petitioner. No representation for the respondents 1 & 2.

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3 . In the suit, both the defendants remained ex parte and the trial Court passed the decree after receiving evidence of the plaintiff as PW1 and documents filed by the plaintiff as exhibits A1 to A10. The suit was decreed with costs in favour of the plaintiff and against the defendants granting mandatory injunction directing the defendants to execute a registered rectification deed as prayed in

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BSB, J C.R.P.No.5975 of 2018

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the execution petition noted above. However, when the very same decree is sought to be executed in E.P.No.298 of 2017, the learned Court dismissed the petition holding that it is clear that if the petition schedule shown survey number is changed, there is every possibility of causing great prejudice to other side, i.e., owner of the other survey number, who is not a party to the suit and they would suffer and consequently, justice would be defeated.

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4 . Having been aggrieved of the dismissal of the execution petition, this revision petition is filed by the Decree Holder/plaintiff on the ground that the error in the survey number is only a typographical mistake and the observations of the execution Court are totally illegal, perverse and are liable to be set aside, as the decree is a valid decree in his favour.

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5 . Learned counsel for the revision petitioner submitted that the execution Court cannot go beyond the decree and make observations of this kind.

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6 . Perused the record as well as the order impugned in this revision.

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7 . The decree & judgment and also the impugned order in the execution petition were passed by the very same Presiding Officer, yet, while passing the decree & judgment, the observations made in the execution petition were never dealt with. On the other hand, a

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BSB, J

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C.R.P.No.5975 of 2018

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detailed judgment was passed and consequently, a decree was also passed. However, when the decree was put for execution, the learned Judge entertained an opinion that a third party may suffer because of the rectification in the survey number. It is settled principle of law that an execution Court cannot go beyond the decree. Of course, this principle is subject to exception when a decree obtained by fraud or when a decree is a nullity and the execution Court is not bound to execute them. But, in the present case, the decree does not fall in either case mentioned supra. As such, the execution Court is bound to execute the decree.

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8 . In the result, the Civil Revision Petition is allowed setting aside the order, dated 09.07.2018, of the Principal Junior Civil Judge, Dhone, passed in E.P.No.298 of 2017 in O.S.No.7 of 2017 and the execution Court is directed to proceed with the execution.

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There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this revision shall

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stand closed.

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B. S. BHANUMATHI, J

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12-12-2022 RAR

J Siva Shankar v. Alluri Sreepathi

Case brief

What is this about?

What did the court decide?

J Siva Shankar v. Alluri Sreepathi

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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