Jangam Veerraju Vs Bodapati Veerabhadra Rao

JANGAM SURI BABU,, S/O LATE VEERRAJU, HINDU, AGED 44 YRS, D.NO.1-131. HARIJ ANPETA, NEAR KUNTIDEVI GUDI, THAMARAPALLE. K. GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

¶12

JANGAM SATYANARAYANA,, S/O LATE VEERRAJU, HINDU, AGED 45 YRS, D.NO.1-131. HARIJANPETA, NEAR KUNTIDEVI GUDI, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

¶13

JANGAM ANASUYA,, W/O LATE VEERRAJU, HINDU, AGED 67 YRS, D.NO.1-131. HARIJANPETA, NEAR KUNTIDEVI GUDI, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

...PETITIONER(S)

AND

Page 2 of 8

BODIPATI VEERABHADRA RAO, S/O KRISHNA MURTHY @ KRISHNAYYA, HINDU, CULTIVATION, AGED 61 YRS, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

¶18

BODAPATI VENKATA SUBBA RAO, @ VENKATA SURESH BABU HINDU, AGED 43 YRS, GOVT. EMPLOYEE, AMBEDKAR NAGAR, YANAM. STATE OF PONDICHERRY.

¶19

...RESPONDENT(S):

¶20

Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to allow the revision by setting-aside the Orders dt.18-04-2023, passed in E.A.No.31 of 2019 in E.P. No.71 of 2018 in O.S. No.245 of 2009 of the Court of the Addl. Junior Civil Judge cum AJFC Magistrate, Ramachandrapuram, thereby dismissing the E.P.No.71 of 2018, by calling for the records of the E.P. No.71 of 2018 in O.S. No.245 of 2009 and grant

¶21

IA NO: 1 OF 2023

¶22

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 Grant Interim Stay of all other proceedings of E.P. No.71 of 2018 in O.S. No.245 of 2009 of the Court of the Addl. Junior Civil Judge cum AJFC Magistrate, Ramachandrapuram, including the delivery of the E.P schedule property, until further orders of this Hon'ble Court pending disposal of the CRP and pass

¶23

IA NO: 1 OF 2025

¶24

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 may be pleased to vacate the interim order passed in dated 12.05.2023 in I.A 1 of 2023 in C.R.P 1334 of 2023, and pass

¶25

Counsel for the Petitioner(S):

¶26

1.P RAJESH BABU

¶27

Page 3 of 8

¶28

Counsel for the Respondent(S):

¶29

1.DASARI S V V S V PRASAD

¶30

C.R.P.NO: 1332/2023

¶31

Between:

¶32

JANGAM VEERRAJU, (DIED)

¶33

JANGAM VEERA PRASAD,, S/O LATE VEERRAJU, HINDU, AGED 49 YRS, D.NO.1-211. HARIJANPETA, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

¶34

JANGAM SURI BABU,, S/O LATE VEERRAJU, HINDU, AGED 44 YRS, D.NO.1-131. HARIJANPETA, NEAR KUNTIDEVI GUDI, THAMARAPALLE. K.GANGAVARARN MANDAL. EAST GODAVARI DISTRICT.

¶35

JANGAM SATYANARAYANA,, S/O LATE VEERRAJU, HINDU, AGED 45 YRS, D.NO.1-131. HARIJANPETA, NEAR KUNTIDEVI GUDI, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

¶36

JANGAM ANASUYA,, W/O LATE VEERRAJU, HINDU, AGED 67 YRS, D.NO.1-131. HARIJANPETA, NEAR KUNTIDEVI GUDI, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT

¶37

...PETITIONER(S)

¶38

AND

¶39

BODAPATI VEERABHADRA RAO, S/O KRISHNA MURTHY @ KRISHNAYYA, HINDU, CULTIVATION, AGED 61 YRS, THAMARAPALLE. K.GANGAVARAM MANDAL. EAST GODAVARI DISTRICT.

¶40

Page 4 of 8

¶41

BODAPATI VENKATA SUBBA RAO VENKATA SURESH BABU, HINDU, AGED 43 YRS, GOVT. EMPLOYEE, AMBEDKAR NAGAR, YANAM. STATE OF PONDICHERRY

¶42

...RESPONDENT(S):

¶43

Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to allow the revision by setting-aside the Orders dt.18-04-2023, passed in E.A.No.32 of 2019 in E.P. No.71 of 2018 in O.S. No.245 of 2009 of the Court of the Addl. Junior Civil Judge cum AJFC Magistrate, Ramachandrapuram, by calling for the records of the E.P. No.71 of 2018 in O.S. No.245 of 2009 and grant

¶44

Counsel for the Petitioner(S):

¶45

1.P RAJESH BABU

¶46

Counsel for the Respondent(S):

¶47

1.NAGABATHULA SRINIVASA RAO

¶48

The Court made the following order:

¶49

The defendant in the suit O.S.No.245 of 2009 filed CRP Nos.1334 and 1332 of 2023 against the separate orders, dated 18.04.2023 in E.A.No.31 of 2019 and E.A.No.32 of 2019 in E.P.No.71 of 2018 in O.S.No.245 of 2009.

¶50

For the sake of convenience, the parties in these revisions shall be referred to as per their array in the suit O.S.No.245 of 2009 on the file of Additional Junior Civil Judge –cum- AJFC Magistrate, Ramachandrapuram.

¶51

The plaintiffs instituted the suit O.S.No.245 of 2009 seeking a direction to defendants 2 to 5 to deliver the khas possession of the suit schedule property after demolishing the structures raised thereon and for permanent injunction restraining defendants 2 to 5, their men, privies, agents and legal

¶52

Page 5 of 8

¶53

representatives, etc. from interfering with the peaceful possession of the suit schedule property.

¶54

The suit was decreed by judgment and decree, dated 21.12.2016 and the decree became final. Thereafter, the plaintiffs filed E.P.No.71 of 2018 under Order XXI Rule 35 of C.P.C. seeking delivery of possession of the suit schedule property.

¶55

Despite service of notice to the defendants/judgment debtors in the execution petition, they failed to file a counter. Hence, the executing court, on 02.07.2018, recorded the proceedings, which read as under:

¶56

“Counter not filed. No representation. Hence, treated as no counter. Issue R 35 delivery warrant on plaint schedule property on payment of process by 02.08.2018.”

¶57

Subsequently, the defendants filed E.A.No.31 of 2019 under Section 151 C.P.C. to set aside the orders, dated 02.07.2018 and E.A.No.32 of 2019 under Section 151 C.P.C. to receive counter, by extending time, in E.P.No.71 of 2018.

¶58

In the affidavits filed in support of the petitions, it was pleaded that in the summons served on the judgment debtors, the execution petition number was shown as E.P.No.7 of 2018 instead of E.P.No.71 of 2018. Due to the said mistake, the defendants could not file a counter. Since no counter was filed on 02.07.2018, the executing court recorded „no counter‟ and issued a delivery warrant. Later on 20.08.2019, the decree holders tried to execute the delivery warrant through Amin and showed the building of the defendants for demolition. Neither the decree holder nor Amin identified the ABCD-marked portion of the plaint plan. When the defendants approached their counsel, they came to know about the mistake and hence filed the applications.

¶59

Page 6 of 8

¶60

The decree holder/respondent No.1 filed a counter and opposed the applications.

¶61

The trial Court dismissed the above two applications vide separate orders.

¶62

Heard Sri P. Rajesh Babu, learned counsel for the petitioners/judgment debtors and Sri Dasari S V V S V Prasad and Sri N. Srinivasa Rao, learned counsel for the respondents/decree holders.

¶63

Learned counsel for the petitioners would submit that the executing court did not set the judgment debtors ex parte on 02.07.2018. It only recorded that „no counter‟ and directed the decree holders to pay process for issuance of delivery warrants under Rule 35, and the judgment debtors were not set ex parte. However, E.A.No.31 of 2019 was dismissed on a misnomer that the judgment debtors were set ex parte. Such a finding is contrary to the material available on record.

¶64

On the other hand, learned counsel for the respondents supported the order passed by the executing court.

¶65

Thus, as seen from the material available on record, there is no dispute regarding filing of the suit O.S.No.245 of 2009 by the plaintiffs against the defendants for the reliefs mentioned supra. In fact, the defendants did not prefer any appeal against the judgment and decree, dated 21.12.2016 and the judgment and decree of the trial court became final.

¶66

It is also not disputed that in the execution petition, the defendants/judgment debtors failed to file a counter. The docket order, dated 02.07.2018 reads as under:

¶67

Page 7 of 8

¶68

“Counter not file. No representation. Hence, treated as no counter.

¶69

Issue Rule 35 delivery warrant on payment of process on 02.08.2018.”

¶70

It is clear that the executing court did not set the judgment debtors ex parte. It only recorded that no counter was filed. However, while dealing with E.A.No.31 of 2019, the executing court assumed that the judgment debtors were set ex parte on 02.07.2018 and held that the judgment debtors ought to have filed an application within thirty days. However, they filed the applications nearly one year later, and hence, dismissed the E.A.

¶71

Of course, it is true that the decree and judgment in suit O.S.No.245 of 2009 became final. However, an opportunity should have been granted to the judgment debtors to contest the executing proceedings by filing counters. In E.P.No.71 of 2018, the judgment debtors could not file a counter within the time stipulated. The Executing Court should have allowed E.A.No.31 of 2019 on payment of costs to the decree holders.

¶72

Learned counsel for the petitioners would further submit that the judgment debtors already filed a counter along with E.A.No.32 of 2019.

¶73

Given the facts and circumstances of the case both these Civil Revision Petitions are allowed. The separate orders, dated 18.04.2023 in E.A.Nos.31 and 32 of 2019 are hereby set aside. Consequentially, both the applications stand allowed on payment of Rs.5,000/- to the respondents/decree holders within three weeks from today. On such payment of costs, judgment debtors shall file a memo to that effect before the executing court. Since the counter is already on record, the executing court shall conduct an enquiry and pass appropriate orders in E.P.No.71 of 2018 in O.S.No.245 of 2009 in accordance

¶74

Page 8 of 8

¶75

with law, as expeditiously as possible, preferably within two months from the date of receipt of a copy of the order.

¶76

As a sequel, all the pending miscellaneous applications shall stand closed.

¶77

___________________________ JUSTICE SUBBA REDDY SATTI

¶78

Date : 20.07.2026 IKN

¶79

Whether the order is :