Dismissed

Dr. Madina Balakrishna v. Malla Krishna Rao

Telangana HC13 Sept 2011CRP/2295/2009

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging a docket order allowing an execution petition and granting police aids. The Court held the lower court acted within jurisdiction as the decree was final, no stay was timely communicated, and the relief sought had already been addressed in a connected matter.

What did the court decide?

Civil Revision Petition dismissed confirming the docket order; no order as to costs.

Dr. Madina Balakrishna Vs Malla Krishna Rao — Execution and Attachment | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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CIVIL REVISION PETITION No.2295 of 2009

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Dated:- 1 3 th September, 2011

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Between:-

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Dr.Madina Balakrishna

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…Petitioner/Judgment Debtor

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AND

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Malla Krishna Rao and others

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…Respondents/Decree-Holders

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.2295 of 2009

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ORDER:-

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This Civil Revision Petition is directed against the docket order 25.05.2009 passed in E.A.No.59 of 2009 in E.P.No.7 of 2009 in O.S.No.9 of 1997 by the Senior Civil Judge, Sompeta, Srikakulam District, whereby and whereunder, the E.A. Advance petition filed by respondents 1 to 4 herein on 04.05.2009 was allowed and the case was advanced from 10.06.2009 to 25.05.2009 .

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2. The petitioner’s case is that the order passed by the Court below in advancing the application from 10.06.2009 to 25.05.2009 and ordering delivery of possession of the petition schedule building to respondents 1 to 4 herein with the help of police is contrary to law, mainly on the ground that the order passed by the Court below for delivery of possession was challenged by him in this Court in C.R.P.No.2235 of 2009 and the said C.R.P. was posted to 10.06.2009 and in view of the same, the Court below erred in entertaining the advancement application filed by respondents 1 to 4

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herein. The other ground urged by the petitioner is that no notice was issued to him in the said advancement application before ordering the application.

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3. It is a fact that the order dated 30.04.2009 passed by the Court below in delivering the possession of the petition schedule building to respondents 1 to 4 herein was challenged by the petitioner in C.R.P.No.2235 of 2009 and when the said C.R.P. came up for admission before this Court on 20.05.2009, this Court did not grant any interim stay and simply posted the matter to 01.06.2009. Thus, there was no stay in the matter. The record reveals that the Court Amin filed a report before the Court below that when he went to the petition schedule building on 12.05.2009 to deliver the possession to respondents 1 to 4 as per the delivery warrants issued by the Court below, the petitioner herein (judgment debtor) resisted the same and, therefore, he returned the warrants to the Court on 13.05.2009.

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4. It is not in dispute that an application to advance the E.P. and another application for ordering police protection were filed by respondents 1 to 4 herein on 18.05.2009 and on that day, admittedly, the petitioner did not approach this Court by filing a revision. Admittedly, the petitioner approached this Court by filing revision in C.R.P.No.2235 of 2009 on 20.05.2009, but, no stay was granted by this Court. Therefore, as on 18.05.2009, there was nothing before the Court below to reject the applications filed by respondents 1 to 4, i.e., for

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advancement and for police protection pursuant to the decree. It has to be seen that as per the report of the Court Amin, he had shown the delivery warrant to the petitioner on 12.05.2009. Admittedly, the petitioner, though having knowledge about the delivery warrant of the Court below, neither approached the executing Court nor filed any memo before the Court below or filed any application under Order XXI Rule 58 C.P.C. making any counter claim in the matter till 18.05.2009 when the lower Court ordered both the applications. It is also not in dispute that the petitioner himself has withdrawn the appeal filed by him in A.S.No.61 of 2000 on the file of the II Additional District Judge, Srikakulam, challenging the decree suffered by him. Thus, having withdrawn the appeal filed by him, the decree passed by the Court below against him has become final.

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5. It is also not in dispute that applications for advancement and police protection were filed on 18.05.2009 and orders were passed by the Court below on 25.05.2009. It is also not in dispute that the petitioner filed C.R.P.No.2235 of 2009 and obtained stay orders on 28.05.2009. Admittedly, he has not filed any revision challenging the order of advancement of E.P. from 10.06.1009 to 25.05.2009 and thus, the order passed by the Court below advancing the E.P. from 10.05.2009 to 25.05.2009 has become final. However, in this C.R.P., the order dated 25.05.2009 of the Court below granting police aid alone is challenged. Therefore there was no

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hurdle to the lower Court in passing orders granting police aid on 25.05.2009 when it was informed that the petitioner/judgment-debtor resisted the Court Amin when he went to execute the decree on 12.05.2009. Basing on subsequent events, the impugned order cannot be set aside. Admittedly, in the Miscellaneous Petition filed along with revision, this Court granted stay on 28.05.2009, which order reads as follows:-

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“Keeping in mind the fact that respondents 1 to 4, who are the purchasers of the property after the decreetal of the suit for eviction filed

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by the original landlady, the 5^th respondent did not obtain the transfer of the said decree in their favour and the executing Court having entertained their application for execution, straight away, without issuing any notice to the petitioner, initiated steps for execution of the decree. There shall be stay of all further proceedings pursuant to the learned Senior Civil Judge, Sompeta in E.A.No.59 of 2009 in E.P.No.7 of 2009 in O.S.No.9 of 1997 pending further orders.”

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6. The issue whether respondents 1 to 4 filed execution petition without assignment of the decree in their favour and whether any notice is required to be given to the judgment-debtor when an E.P. has been filed within a period of two years have already been held in favour of respondents 1 to 4 herein in the connected

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matter in C.R.P.No.2235 of 2009 and, therefore, there is no need to repeat the same.

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7. In fact, stay was granted by this Court is in respect of orders passed in E.A.No.59 of 2009, i.e., granting of police aid to respondents 1 to 4 herein. Now it has to be seen what happened after 28.05.2009. Admittedly, the order passed by this Court on 28.05.2009 was not intimated to the Court below. Admittedly, wire at cost was not obtained by the petitioner herein on the same day. However, a request was made to issue certified copy by next day, i.e., on 29.05.2009. It is not the case of the petitioner that he filed any memo before the Court below intimating the stay order passed by this Court staying all further proceedings in the said E.A. Therefore, it is clear that the Court below was not intimated about the filing of this C.R.P. and passing of interim stay orders staying all proceedings, till 30.05.2009. We are only concerned with the order passed on 25.05.2009 granting police aid to respondents 1 to 4 herein in this revision.

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8. Thus, it is clear that the Court below had no knowledge about filing of this revision by the petitioner herein and obtaining interim stay on 28.05.2009. Thus, it cannot be said that the order passed by the Court below on 25.05.2009 granting police aid is contrary to law or illegal. As can be seen from the record, admittedly, the Court below was well within its jurisdiction to entertain the execution applications filed by respondents 1 to 4

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herein and pass orders.

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9. In view of the above, I do not see any error of law or irregularity and there is nothing contra to clauses 1 to 6 of Section 115 C.P.C. which enables this Court to exercise revisional jurisdiction. It cannot be said that the Court below had no jurisdiction to exercise its power or failed to exercise its jurisdiction so vested in it or has acted in exercise of its jurisdiction illegally or irregularly. The revision is meritless and is liable to be dismissed.

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10. Accordingly, the Civil Revision Petition is dismissed confirming the docket order 25.05.2009 passed in E.A.No.59 of 2009 in E.P.No.7 of 2009 in O.S.No.9 of 1997 passed by the Court below. There shall be no order as to costs.

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_________________________ Justice B.Chandra Kumar

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13^th September, 2011 Bvv

Dr. Madina Balakrishna v. Malla Krishna Rao

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Dr. Madina Balakrishna v. Malla Krishna Rao

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