Dismissed

B.Prasad, v. v.Subbarayudu

Telangana HC23 Mar 2010CRP/3006/2009

Case brief

AI extract

What is this about?

The High Court dismissed the civil revision petition challenging an order allowing execution of a decree for delivery of vacant possession. The court held that the executing court was justified in directing demolition of constructions made during the suit, treating the absence of a specific injunction in the decree as a curable irregularity rather than a nullity.

What did the court decide?

The Civil Revision Petition No. 3006 of 2009 was dismissed. No costs awarded.

B.Prasad, Vs v.Subbarayudu — Execution and Attachment | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction)

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TUESDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND TEN

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PRESENT

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THE HON'BLE MS JUSTICE G.ROHINI

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CIVIL REVISION PETITION No. 3006 OF 2009

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Between: B.Prasad ..... PETITIONER AND V.Subbarayudu and others

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.....RESPONDENTS

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Counsel for the Petitioner: Counsel for the Respondents: The Court made the following :

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THE HON'BLE MS JUSTICE G.ROHINI

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CIVIL REVISION PETITION No. 3006 OF 2009

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O R D E R :

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This Revision Petition is directed against the order dated 10.06.2009 in E.P.No.4 of 2007 in O.S.No.34 of 1994 on the file of the Court of the Senior Civil Judge, Kadiri. The judgment debtor No.3 is the revision petitioner.

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The suit was filed by the 1^st respondent herein for declaration of title and delivery of suit schedule property, and the same was decreed by judgment dated 31.12.2003. Pursuant thereto, the decree holder filed E.P.No.4 of 2007 for delivery of the vacant possession of the suit schedule property by removing the constructions made thereon. The judgment debtor No.3 filed a counter stating that the E.P. itself was not maintainable, since Order 21 Rule 35 of Civil Procedure Code did not provide for removal of the constructions. It was further contended that since the house was constructed by the judgment-debtors, in the absence of a decree for mandatory injunction for removal of the structures the decree cannot be enforced.

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A separate counter affidavit was filed on the same lines by the judgment debtors 1 to 6. On hearing both the parties, the Court below by order dated 10.06.2009 allowed the E.P. and granted one month time to the judgment debtors to get the structures demolished and recover get the cost of such demolition from the decree holder through Court, failing which the decree holder was granted liberty to get it done through process of law. Aggrieved by the said order, the present Revision petition is filed by the judgment debtor No.3.

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I have heard the learned counsel for both the parties and perused the material available on record.

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Against the decree in O.S.No.34 of 1994 declaring the title of the plaintiff and directing delivery of vacant possession though the defendants preferred A.S.No.65 of 2004 the same was admittedly dismissed. Thus the decree became final.

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The law is well-settled that the executing court cannot go beyond the decree or refuse execution except where the decree is passed by the Court lacking inherent jurisdiction or is a nullity. In the instant case, the decree was admittedly passed by the Court of competent jurisdiction.

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Though there was no specific direction in the decree for removal of the constructions, it is not disputed before this Court that the decreeholder got the suit schedule amended by including the constructions in question even before filing the execution petition Admittedly the said constructions were made by the judgment-debtors during pendency of the suit. In the circumstances, the Court below was justified in directing demolition of the constructions made pendente lite and to deliver vacant possession to the decree-holder. Having regard to the facts and circumstances of the present case, the absence of a specific direction in the decree for removal of the constructions at the most is an irregularity which is curable even at the stage of execution and the decree itself cannot be held to be nullity or inexecutable. Hence, the contentions of the petitioner are untenable and the order under Revision warrants no interference.

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The material available on record shows that appearance was entered on behalf of all the judgment-debtors before the Court below and separate counter-affidavits were also filed contesting the E.P. Hence, the contention of the learned counsel for the petitioner that the impugned order was passed without notice to the judgment-debtors was factually incorrect.

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Therefore, the Civil Revision Petition is devoid of merit and the same is accordingly dismissed. No costs.

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_____________ Date: 23.03.2010 G. ROHINI, J.

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Note: Issue CC in three days (B/o) Ivd

B.Prasad, v. v.Subbarayudu

Case brief

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B.Prasad, v. v.Subbarayudu

Case brief

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