Dismissed

Pachigolla Ramesh v. Chalamlasetty Chandra Shekhara Rao

Andhra Pradesh HC4 Nov 2024CRP/230/2024

Case brief

AI extract

What is this about?

High Court dismissed a civil revision petition challenging the dismissal of an execution petition. The court held that replacing a removed window AC with a split unit at a different height did not violate the original decree, as the factual basis for the nuisance had changed.

What did the court decide?

Civil Revision Petition dismissed with no order as to costs.

Pachigolla Ramesh Vs Chalamlasetty Chandra… — Property and Title | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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TUESDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MS JUSTICE B.S. BHANUMATHI

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CIVIL REVISION PETITION No: 230 OF 2024

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Petition under Section 115 of CPC, praying that in^{thecircumstances} stated in the grounds filed herein, the High Court may be pleased to setaside order dated 03-11-2023 passed in E.P.No.99 of²⁰¹⁹ in O.S.No.461 of 2006 by the Principal Junior Civil Judge, Machilipatnam,^{KrishnaDistrict.}

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Between:

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Pachigolla Ramesh, (died)

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Pachigolla Vara laxmi, W/o. Late. Ramesh, aged about 48 yrs, Occ House wife, R/o. D.No.20/375, Chilakalapudi, Machilipatnam, Krishna District.

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Pachigolla Raja Rajeswari, D/o. Late Ramesh, aged about 34 yrs, Occ House wife, R/o. D.No.20/375, Chilakalapudi, Machilipatnam, Krishna District.

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Pachigolla Sai Lakshmi, D/o. Late Ramesh, aged about 23 yrs. Student, R/o. D.No.20/375, Chilakalapudi, Machilipatnam, Krishna^District.

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...Petitioners/PetItioners/D.Hrs

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AND

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Chalamlasetty Chandra Shekhara Rao, (died)

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Chalamalasetty Venkata Yeteswaramma, W/o. Chandra Shekhara Rao, aged about 55 yrs, Occ: businesses. Dr. No. 20/374, Chilakalapudi, Machilipatnam, Krishna District.

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-■>

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...Respondents/Respondents/J.Drs.

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JA4J0: 1 OF 2024

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Petition under Section 151 CPC praying that in the^{circumstances} stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the findings in order dated 03-11-2023 passed in E.P.No.99 of 2019 in O.S.No.461 of 2006 by the Principal Junior Civil Judge, Machilipatnam, Krishna District.

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Counsel for the Petitioners: SRI. C.B. ADARSH KUMAR

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Counsel for the Respondents: NONE APPEARED

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The Court made the following Order:

APHC010047552024

0&:s

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3311] (Special Original Jurisdiction)

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TUESDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 230/2024

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Between:

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Pachigolla Ramesh and Others

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...PETITIONER(S)

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AND

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Chalamlasetty Chandra Shekhara Rao and Others ...RESPONDENT(S)

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Counsel for the Petitioner(S);

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1.C B ADARSH KUMAR

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Counsel for the Respondent(S):

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The Court made the following:

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BSB, J C.R.P.No.230 of 2024

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ORDER:

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This revision petition is filed under Section 115 CPC^againstthe order, dated 03.11.2023, passed in E.P.No.99 of 2019^{inO.S.No.461of} 2006 on the file of the Court of the Principal Junior^Civil Judge, Machilipatnam, Krishna District, filed by the defendants^underOrder XXI, rules 22, 32 CPC to issue rule 32 notice to the^{JDrsforremovalof} the AC machine, on failure to take necessary action^{againsttheJDrs} according to law.

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The facts, in brief, are as follows:

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The DHrs filed suit against the JDrs for removal of^ACmachine erected in the lane. After elaborate trial, a decree was passed on 18.12.2019. But the JDrs preferred appeal before the^Court of IX Additional District Judge, Krishna at Machilipatnam, in A.S.No.161 of 2009 and the appeal was dismissed on 30.12.2016. Subsequently,^no second appeal is preferred. Even thereafter, in spite^{ofseveralrequests} by the DHrs, the JDrs failed to comply the decree, Therefore, the aforesaid execution petition was filed, The execution petition was opposed by filing counter of the 2""* JDr denying the^{avermentsinthe} petition and further stating that earlier window AC^{wasfixedonthewall} at 4 feet above from the ground. The said AC was fixed^{forcomfortand} convenience of the 1®^ JDr when he was seriously ill^andlater,the 1 St

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BSB,J C.R.P.No.230 of 2024

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JDr died on 30.10.2016. After his death, AC machine^wasremoved. Now, the JDrs fixed a split AC at a height of more^{than9feetfromthe} ground level and above the level of the window of the DHrs. Earlier, the objections of the DHrs was that heat waves generated^{fromthewindow} AC are passing through the window of the DHrs and causing^sound disturbance. As the AC is now changed and fixed at higher level than earlier, the decree is not executable.

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The 2'^'^ DHr was examined as PW1 and 5 photographs along with CD are marked as Ex.PI. Third parties were examined^asPW2and PW3. The 2 nd JDr was examined as RW1 and no document for evidence was filed. After hearing both parties and examining the evidence, the execution Court dismissed the petition opining that by removing the old AC machine as existed, the JDrs complied^thedecree and erecting new type of split AC machine at higher ground level does not amount to violation of the decree.

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Aggrieved by the order, this revision petition is filed.

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Heard Sri C.B Adarsh Kumar, the learned counsel for the petitioners/DHrs. In spite of service of notice on the 2^^ respondent/JDr, she refused to receive the notice. Hence, service of^{noticeonheris} held sufficient.

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4 BSB, J C.R.P.No.230 of 2024

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The main contention of the revision petitioners is^thatjustby removing the window AC and installing a split AC in^{thesamelanedoes} not change the pollution caused to the DHRs on account^ofheatand noise released from the machine and thereby causing^{inconvenience.} Thus, it is vehemently contended that the decree is^{stillexecutable,but} the execution Court failed to appreciate the evidence^properlyand understand the decree in a proper perspective.

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It is pertinent to mention here Section 115 CPC:"115. Revision.-

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(1) The High Court may call for the record of any case which has been decided by any Court subordinate to^such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

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(a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court^maymake such order in the case as it thinks fit.

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(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate^thereto.

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BSBJ C.R.P.No.230 of 2024

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(3) A revision shall not operate as a stay of suit^orother proceeding before the Court except where such suit^orother proceeding is stayed by the High Court.

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Explanation--.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.”

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A careful reading of Section 115 (1) CPC reveals that^arevision petition would be maintainable against any order of^{asubordinateCourt} to the High Court, against which no appeal lies and^{ifsuchsubordinate} Court has exercised a jurisdiction not vested in it^orhas failed to exercise a jurisdiction so vested or has otherwise acted illegally or with material irregularity. Therefore, the scope of the revision against the impugned order is limited to the parameters set out in the above provision.

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When the decree was passed and the same was affirmed by the appellate Court, the evidence considered was based^ona window AC installed at a particular height. But, when the execution petition was filed, the window AC was removed and a split AC was^installedata littler higher position than the place at which window^ACexisted. Even then, the DHrs contend that there is violation of decree by the smart way in which the JDrs mislead the execution Court, has not been properly appreciated by the execution Court. By installation of a ^plit

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BSB,J C.R.P.No.230 of 2024

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AC at a different level than the window AC existed for which^adecree was passed, the DHrs cannot contend that the same decree should be the factual situation. The ©nforced even after the change in photographs cannot indicate the amount of heat generated^orthewayin which the heat air would flow so as to treat the inconvenience^causedto the DHrs is the same as it was when window AC existed^evenafter installation of the split AC in a different place. Therefore, the execution

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Court rightly dismissed the execution petition. This^{Courtdoesnotsee} to interfere with the order impugned in this revision. any reason

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Accordingly, the Civil Revision Petition is dismissed.

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There shall be no order as to costs.

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Miscellaneous petitions pending, if any, shall stand^closed.

SDI- N NAGAMMA

ASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

The Principal Junior Civil Judge, Machilipatnam,^{KrishnaDistrict.} 2. One CC to Sri C.B. Adarsh Kumar, Advocate [OPUC]

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Three CD Copies

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GLM sree

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HIGH COURT DATED:05/11/2024

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ORDER

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CRP.No.230 of 2024

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18 FEB 2(K5 |
^ ^ Current SecUw ^
%jLoe3FATCv;g8»^

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DISMISSING THE C.R.P. WITHOUT COSTS.

Pachigolla Ramesh v. Chalamlasetty Chandra Shekhara Rao

Case brief

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Pachigolla Ramesh v. Chalamlasetty Chandra Shekhara Rao

Case brief

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