Allowed

Muvvala Chinnayya (died) v. The Special Officer and Competent Authority

Telangana HC22 Apr 2013CRP/3237/2010

Case brief

AI extract

What is this about?

The revision court set aside unnecessary observations made by an Executing Court while dismissing an application under Order XXI Rule 99 read with Section 47 C.P.C. The Executing Court had found the application for declaration of title and possession by the special officer to be without merits and dismissed it. However, it then remarked that the petitioners were liable to be evicted. The revision

What did the court decide?

The observations made by the Executing Court holding the petitioners liable to be evicted, which were outside the scope of the E.A., are set aside and shall not be binding on any parties.

Muvvala Chinnayya (died) Vs The Special Officer… — Execution and Attachment | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY

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C.R.P. No.3237 of 2010

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ORDER:

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This is one of the chronic cases that is haunting the Court of I Additional Junior Civil Judge, Visakhapatnam. The deceased2^nd respondent filed O.S.No.72 of 1959 against the deceased1^st petitioner for recovery of possession of Ac.1.50 cents of land in Sy.No.20/3 of Resapuvanipalem Village, Visakhapatnam District. The suit was decreed on 22-04-1962. E.P.No.38 of 1968 was filed for execution of the decree. While the petitioners are legal representatives of the deceased-1^st petitioner, respondents 2 to 14 are said to be the legal representatives of the deceased2^nd respondent.

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After the execution of the decree, the 1^st respondent-Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam, filed E.A.No.590 of 1999, under Order XXI Rule 99, read with Section 47 C.P.C., with a prayer to declare that the delivery of possession effected in the E.P., is not binding upon them. The contention of the 1^st respondent was that the suit schedule property was declared as surplus under the Urban Land Ceiling Act (for short ‘the Act’), and it is vested in the Government, and in that view of the matter, there cannot be execution of the decree,

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in respect of that land. The application was opposed by the petitioners and others. Through an elaborate order dated 01-08-2002, the Executing Court dismissed the E.A. However, it was observed that the petitioners and certain others are in possession of

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the property in question, and that they are liable to be evicted. Feeling aggrieved by that observation, the petitioners filed C.M.A.No.64 of 2002 in the Court of IX Additional District and Sessions Judge (Fast Track Court) , Visakhapatnam. The appeal was dismissed, through order dated 31-03-2005. Hence, this revision.

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Heard Sri A. Veeraswamy, learned counsel for the petitioners and Sri M.P. Chandramouli, learned counsel for the respondents.

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The suit was decreed, way back in the year 1962, and the decree was also executed. The 1^st respondent wanted to reopen the matter, in the form of declaration to the effect that the delivery of possession of the land, in the process of execution; is not binding upon them. The basis was that the land was surplus under the Act and it stood vested in it. Since the application was filed under Rule 99 of Order XXI C.P.C., and it was required to be decided as though it is a suit, the Executing Court has undertaken full-fledged trial.

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Before the Executing Court, PW-1 was examined, on behalf of the 1^st respondent, and Exs.A-1 to A-30 were filed. The deceased-2^nd respondent was deposed as RW-1, and Exs.B-1 to B-30 were filed. In addition to that, the documents, filed by the respondents 12, 13 and 14 were marked as Exs.R-1 to R-8. After undertaking extensive discussion, the Executing Court recorded a finding in paragraph 16 of its order, as under:

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“…I hold that this petition is maintainable U/Or.XXI R.97 CPC. However, the petitioner (1^st respondent) has not proved its case regarding it’s title and possession of the land in question for the reasons which I discussed above. The D.Hrs/respondents in this petition have got title and right to recover possession of the property in

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question in EP 38/68”.

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With that finding, the application should have been rejected and the matter ought to have been left at that. However, the Executing Court proceeded further, and observed,

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“…It is evident from the record that the J.Drs/respondents and some other persons under the J.Drs/respondents are in possession of the said property in question and they are liable to be evicted and removed along with their structures from the property in EP 38/68 in O.S.72/59. Therefore, this petition has no merits whatsoever.”

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Reference in this passage was to the petitioners herein. Once the Executing Court felt that E.A., filed by the 1^st respondent was without any merits and dismissed the application, there was absolutely no basis for it, to record findings, regarding the state of affairs over the land. It failed to see that the decree-holder did not make any complaint about any encroachments, or the defects in execution. Totally unnecessary and unwarranted observations were made by the Executing Court, exposing the petitioners to legal action.

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Hence, the C.R.P is allowed, and the observations made by the Executing Court, which held to be outside the scope of the E.A., filed by the 1^st respondent; are set aside, and that they shall not be binding on any parties to the proceedings.

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The miscellaneous petitions filed in this C.R.P shall also stand disposed of.

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There shall be no order as to costs.

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L. NARASIMHA REDDY, J

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Dt.22-04-2013

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Muvvala Chinnayya (died) v. The Special Officer and Competent Authority

Case brief

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Muvvala Chinnayya (died) v. The Special Officer and Competent Authority

Case brief

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