Dismissed

Velagapudi Venkateswara Rao v. Velagapudi Damayanthi (died)

Andhra Pradesh HC14 Sept 2023CRP/107/2022

Case brief

AI extract

What is this about?

This revision petition challenged an execution order allowing restitution of property. The High Court dismissed the petition, holding that the plea regarding mandatory notice was waived by failure to prove substantial injury and that the status quo was properly vacated due to conditional order breach.

What did the court decide?

The revision petition was dismissed; the execution order allowing restitution of the suit property stands upheld.

Velagapudi Venkateswara Rao Vs Velagapudi… — Property and Title | Andhra Pradesh HC (2023)

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THE HON’BLE MS JUSTICE B.S.BHANUMATHI

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Civil Revision Petition No.107 of 2022

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ORDER :

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The Civil Revision Petition is filed under Article 227 of Constitution of India, against the order dated 13.12.2021, allowing E.P.No.36 of 2021 in O.S.No.705 of 1983 on the file of the Court of II Additional Senior Civil Judge, Vijayawada filed by D.2 (since D1 died) for enforcement of decree dated 19.07.1999 for delivery of possession of the petition (plaint) schedule property to D.Hr/D2 by removing J.Drs. (plaintiffs No.1 and 2) as per the Order XXI Rule 35 CPC.

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2. The facts leading for filing of the execution petition are briefly as follows:-

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The J.Drs/plaintiffs filed the suit for declaration of title and recovery of the possession of suit schedule properties against both 1^st and 2^nd defendants who are mother and son respectively. The suit is filed in respect of two items of property.

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They are Item No.1 : an extent of 0-84 ½ cents out of Ac.1-69 cents of wet land in survey No.528/2 in Gollapudi village bounded by :

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East : Temple land

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South & North : Remaining land belonging to plaintiffs in R.S.No.528/2 ;

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West : Land of Vadlamudi Venkaiah

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Item No.2 : an extent of 0-05 cents in R.S.No.546 /5 in Gollapalli village, bounded by :

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East : Hayrick yard of Nakkena Tulasamma

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South : Land of A.Punnaiah etc.,

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West : Plaintiffs land in R.S.No.647/5

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North : Hayrick yard of Ponnam Venkataratnam.

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3. The suit was decreed exparte on 09.08.1991. Subsequently, by order dated 19.01.1998 in C.R.P.No.2961 of 1996, the exparte decree was set aside. Meanwhile, the plaintiffs are said to have taken possession of the suit schedule properties. As such, the defendants filed I.A.No.325 of 1999 in O.S.No.705 of 1983 under Section 144 CPC for restitution of the property. While disposing of the petition, the Court observed that the contention would be considered at the time of passing of the judgment. Accordingly, on 19.07.1999 while passing the judgment and decree dismissing the suit, the trial Court ordered restitution of both items of plaint schedule properties from the plaintiffs. Thereafter, the plaintiffs preferred appeal in A.S.No.2255 of 1999 before this High Court against the decree and judgment in the suit.

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Along with the appeal, an Interlocutory Petition C.M.P.No.19992 of 1999 was filed for suspension of the operation of the impugned judgment pending disposal of the appeal. On 29.10.1999, an interim order was passed granting status quo till the disposal of the appeal with a condition that the appellants have to deposit Rs.7000/- on or before 10^th January of every year commencing from 10^th January of 2001 and shall continue to deposit the same every year and the respondent/defendant (D2) shall be entitled to withdraw the same without furnishing any security. It was further ordered that the appellants shall continue to be in possession of the suit schedule property till disposal of the appeal and that in default of payment as ordered, that order of status quo shall stand vacated.

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4. The Decree Holder/D2 contended that the J.Drs./plaintiffs/appellants deposited Rs.7000/- P.A. from 2001 to 2012 and thereafter committed default and thus, the order of status quo stood vacated. On 28.10.2020, the D.Hr got issued a notice to J.Drs demanding them to deposit Rs.7000/- P.A. from the year 2013 to 2020 making a total of Rs.56,000/- to the credit of the suit under intimation to the D.Hr and also to deliver the vacant possession of the suit

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schedule properties to him within six days from the date of receipt of notice as the J.Drs committed default in the directions of interim order of the High Court. As such, the D.Hr sought execution of the decree, though the appeal is pending.

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5. The J.Drs deposited Rs.56,000/- into the Court deposit vide challan dated 20.10.2021. The J.Drs/plaintiffs filed counter on 22.10.2021 stating that the averments in the affidavit filed in support of the petition are all neither true nor correct and the petition is liable to be dismissed in limini and is not maintainable either on facts or on law. They further stated that they preferred appeal in A.S.No.2255 of 1999 and the same is pending and so the D.Hr is not entitled to proceed with the execution petition or otherwise, the appeal become infructuous. They sought to dismiss the E.P. with costs.

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6. After hearing both parties, the execution Court allowed the execution petition observing that merely because the respondents deposited the amount towards rent for eight years for the period 2013 to 2020 on 20.10.2021, it does not mean that the order of status quo which stood vacated would be revived automatically and that such deposit was made without seeking permission of the Court. The execution Court

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further observed that as the order of status quo is not in force, the D.Hr is entitled to seek restitution of the plaint schedule properties by evicting the respondents from it and allowed the execution petition.

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7. Having been aggrieved by the order of execution petition, this revision petition is filed mainly contending that the above observations of the execution Court are contrary to the letter and spirit of the order of status and are liable to be set aside. It is further mainly contended that the order was

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passed without issuing notice under Order XXI Rule 22 CPC, though the execution petition was filed beyond two years from the date of the decree and therefore, the execution petition is not maintainable.

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8. Heard Sri M.Chalapathi Rao, learned counsel representing Sri Subba Rao Korrapati, learned counsel for the petitioners and Ms G.K.V.Kumari, learned senior counsel for respondents.

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9. Since this revision petition is heard along with the appeal in A.S.No.2255 of 1999, the learned counsels representing both sides submitted to pass order in this revision petition depending on the result in the appeal.

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10. It is firmly contended in the counter that the execution petition becomes infructuous as the appeal was pending by then. It is pertinent to mention that though the appeal was pending as on the date of filing of the execution petition and passing of the order in the execution petition, there is no dispute about the executability of the decree as on the date of filing of the execution petition or as on the date of passing of the order therein, on the ground that the appeal was pending.

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11. Though there is no ground taken in the counter about the maintainability of the execution petition for not issuing notice under Order XXI Rule 22 CPC, it is for the first time raised before this Court and vehemently contended that the order is liable to be set aside for want of the mandatory notice. As such, the learned senior counsel for the respondents contended that as this ground was not raised before the execution Court, there was no opportunity to the execution Court to decide the same.

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12. The learned counsel for the revision petitioner further submitted that though it was not raised in the counter, since it is a legal error committed in exercise of jurisdiction by the execution Court, it can be raised in the revision petition.

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In reply to the same, the learned senior counsel for the respondents submitted that the maintainability of the execution petition on this ground cannot be raised because the D.Hr issued notice for deposit of the amount on 28.10.2020 asking the J.Drs to deposit the arrears for the period between 2013 and 2020 and to vacate the property by handing over the same to the D.Hr and the said notice was received by D1 and refused by D2 and thus, the execution petition was filed within two months thereafter i.e., on 23.12.2020 and reiterated that the opportunity to D.Hr to take the plea before the execution Court was lost as it was not raised.

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13. The learned counsel for J.Drs further submitted since notice was issued by the D.Hr to J.Drs just before filing of the execution petition, it is not a fact known to J.Drs that D.Hr is likely to go for execution of the decree in the event of non-compliance of the request in the notice.

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14. Since the amount was not deposited from the year 2013 till the deposit was made after status quo order got vacated due to default in making payment on or before 7^th January, 2013, the decree becomes executable immediately after the stipulated time in the year 2013. However, since the

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execution petition was filed on 23.12.2020, the filing of the execution petition is more than two years not only from the date of passing of the decree, but also the executability of the decree. As such, the notice as required under Order XXI Rule 22 CPC is to be issued. However, such notice was not issued.

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15. It is apt to note here Order XXI, Rule 22 (2) CPC with its proviso :-

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“(1) Where an application for execution is made, –

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(a) more than (two years) after the date of

the decree, or

(b) …

(c) …

the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.

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Provided …

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(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.”

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In view of the proviso to Order XXI, Rule 22 (2) CPC, the J.Dr has to establish that non-issuance of notice or nonmentioning of the reasons for dispensing with the notice has resulted in substantial injury. This matter required assertion of facts and proof to the effect of resultant substantial injury. As is already recorded, no plea is taken in the counter regarding non-issue of notice under Order XXI Rule 22 CPC, much less the resultant substantial injury. As such, since it is a pure question of law, the same cannot be raised in revision for the first time as an irregularity committed by the execution Court while passing the order. Rather it amounts to waiver of the benefit given to the J.Dr by not taking a plea and proving ‘substantial injury’. The learned counsel for the revision petitioner contended that ordering delivery of the property pending the appeal itself is a harsh action going against the interest of J.Drs and there cannot be more substantial injury than that harshness. This argument cannot be accepted for the reason that mere filing of the appeal does not amount to stay of the decree under execution as per Order 41 Rule 5(1) CPC and moreover, the conditional order of status quo with a default clause therein was breached and therefore, the said order has come into force rendering the order of status quo got vacated by operation of the said order

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and no further order of the High Court is required expressly again stating that the order of status quo got vacated by default in complying the condition. That apart it is not shown that the J.Drs got any other order from the appellate Court to condone the delay in making the payment as per the conditional order so as to over the resultant default which was already committed. Therefore, merely because the execution Court observed that the order of status quo is deemed to be vacated by default, the order cannot be said to be incorrect. Therefore, the order of the execution Court does not require interference on this ground.

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16. In view of the result in the appeal, the D.Hr is entitled to proceed with the execution petition from this stage where it was when the order granting conditional status quo was brought to the notice of the execution Court.

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17. The learned counsels for both parties submitted to pass appropriate orders with regard to the amount already deposited by J.Drs. The amount of Rs.56,000/- was already paid under the aforesaid circumstances. The amount was permitted to be withdrawn by D.Hr without furnishing any security. There is no need to prohibit the D.Hr even now, from withdrawing the same, if not so far withdrawn, because

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the property has not been vacated by the J.Drs, though the order of status quo stood vacated by operation of the interim order itself. Thus, the right of the D.Hr to withdraw the same as per the said order needs no interference.

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18. In the result, the Civil Revision Petition is dismissed with the above observation.

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There shall be no order as to costs.

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Pending miscellaneous applications, if any, shall stand closed.

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________________________ JUSTICE B.S.BHANUMATHI

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Date : 14-09-2023 SAB

Velagapudi Venkateswara Rao v. Velagapudi Damayanthi (died)

Case brief

What is this about?

What did the court decide?

Velagapudi Venkateswara Rao v. Velagapudi Damayanthi (died)

Case brief

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