Allowed

Bhimsen Gamji v. Padmavathi Silk Center

Telangana HC15 Apr 2011CRP/4187/2010

Case brief

AI extract

What is this about?

In a civil revision, the High Court held that an execution petition could be numbered despite the lower court's refusal based on the appellate decree's silence on possession delivery. The court noted the decree's direction for mesne profits until possession delivery implied executability.

What did the court decide?

Order dated 26.08.2010 set aside; Civil Revision Petition allowed; lower Court directed to number Execution Petition.

Bhimsen Gamji Vs Padmavathi Silk Center — Execution and Attachment | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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C.R.P.No. 4187 of 2010

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DATE: 15-04-2011

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Between: Bhimsen Gamji And Padmavathi Silk Center, Sultan Bazar, Hyderabad.

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.. Petitioner

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And .. Respondent

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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C.R.P.No. 4187 of 2010

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ORDER:

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This Civil Revision Petition is filed against the order dated 26.08.2010 of the V Junior Civil Judge, City Civil Court, Hyderabad in refusing to number the E.P.S.R.No.3356 of 2010 in O.S.No.5232 of 1999 on the ground that the appellate decree is silent about delivery of possession of the property and, therefore, the decree is not executable.

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The facts are that the suit was filed for recovery of possession of the property and also for mesne profits. The suit was dismissed. Against which, an appeal was preferred in A.S.No.235 of 2003. The said appeal was allowed by the II Additional Chief Judge, City Civil Court, Hyderabad. A Second Appeal was said to have been filed but there was no stay of execution. The lower Court has not numbered the Execution Petition on the ground that the appellate court decree is

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silent about delivery of the possession. It is useful to extract the operative portion of the decree of the appellate Court.

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1. That the appeal filed by the appellant be and the same is hereby allowed.

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2. That the respondent do pay to the appellant the mesne profits at the rate of Rs.5,000/- per month from the month of January, 2000 till he delivers the vacant possession of the suit schedule property.

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A plain reading of the decree clearly goes to show that the appeal is allowed, it means that the judgment and decree of the lower Court was set aside and the reliefs prayed for in that were granted. To be more clear, it is useful to refer the clause-2 of the decree, where it was specifically mentioned that the mesne profits shall be paid from January, 2000 till the delivery of vacant possession of the suit schedule property. Therefore, the reasons given by the lower Court that there was no direction in the appellate Court’s decree for delivery of possession of the property and consequently the Execution Petition cannot be numbered, is erroneous.

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Therefore, the order of the lower Court is set aside and the revision is allowed. The lower Court is directed to number the Execution Petition and the judgment-debtor can take all the objections open to him in the Execution Proceedings. No costs.

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N.R.L.NAGESWARA RAO, J

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15-04-2011 MR

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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C.R.P.No. 4187 of 2010

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DATE: 15-04-2011

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Bhimsen Gamji v. Padmavathi Silk Center

Case brief

What is this about?

What did the court decide?

Bhimsen Gamji v. Padmavathi Silk Center

Case brief

What is this about?

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