Dismissed

M. Thirupalaiah Chetty, v. D.K. Srinivasa Rao (Died per L.R.)

Telangana HC5 Mar 2013CRP/764/2013

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition seeking setting aside of a lower Court's order rejecting an execution petition. The revision court held that the lower Court's view that the petitioner failed to prove demolition beyond reasonable doubt was plausible and unmistakeable under Section 115 CPC.

What did the court decide?

The civil revision petition was dismissed.

M. Thirupalaiah Chetty, Vs D.K. Srinivasa Rao (Died per… — Property and Title | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY

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Civil Revision Petition No.764 of 2013

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Date: 05.03.2013

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Between: M.Thirupalaiah Chetty

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..... Petitioner

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AND

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D.K.Srinivasa Rao (died per L.R.), and four others

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.....Respondents

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Counsel for the Petitioners: Sri C.Hanumantha Rayudu

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Counsel for Respondent Nos.4 & 5: Sri Kothapalli Ram Mohan Choudary

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The Court made the following:

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ORDER:

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This civil revision petition arises out of order, dated 11-09-2007, in E.P.No.562 of 2003 in O.S.No.243 of 1991, on the file of the learned Principal Junior Civil Judge, Anantapur.

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For disposal of this case, it is not necessary to

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refer to the facts in detail. It will suffice to note that the petitioner obtained a decree for declaration of title and permanent injunction in O.S.No.243 of 1991 on 17-02-1998. In pursuance of the decree, the petitioner has got a wall constructed by way of execution of mandatory injunction. The appeal filed by the respondents against the said judgment and decree was dismissed by the learned IV Additional District Judge (FTC), Anantapur, on 13-09-2002.

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The petitioner pleaded that subsequent to the dismissal of the appeal, the respondents have demolished a part of the suit wall. That he has therefore filed E.P.No.562 of 2003 for a direction to reconstruct the wall and punish the respondents by their imprisonment and attachment of their properties for violation of the decree. E.A.No.1185 of 2004 filed by the petitioner for appointment of an Advocate Commissioner to note down the physical features was dismissed on 12-04-2006, giving liberty to him to file a fresh application at the stage of enquiry. However, the fresh application was also dismissed later. Eventually, the lower Court has dismissed E.P.No.562 of 2003 on 11-09-2007.

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At the hearing, Sri C.Hanumantha Rayudu, learned counsel for the petitioner, submitted that the reasons assigned by the lower Court for dismissing the E.P., are not sustainable. He has further

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submitted that even in the judgment of the appellate Court in A.S.No.54 of 1998, a specific finding has been rendered that the respondents have demolished the suit wall to some extent from point ‘D’ and that finding itself reflects their conduct that they are indulging in demolition of the wall time and again. The proceedings of contempt are quasi criminal in nature and unless a party alleging contempt proves beyond all reasonable doubt that the opposite party has deliberately violated the order, he cannot be punished in exercise of the contempt jurisdiction.

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A perusal of the order of the lower Court shows that it has relied upon certain admissions of the petitioner in coming to the conclusion that he failed to prove the allegation that the respondents have demolished the suit wall. While exercising its revisional jurisdiction under Section 115 of CPC, this Court would not substitute its opinion even if two views are possible on the evidence on record. The view taken by the lower Court for dismissing the petitioner’s E.P., being a plausible view, though it may not be the only correct view, still this Court will not over rule the view of the lower Court, inasmuch as the lower Court in appreciation of evidence rendered the finding that the petitioner failed to

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produce proper evidence, except his ipse dixi.

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For the above-mentioned reasons, I do not find any merit in this civil revision petition and the same is accordingly dismissed.

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C.V.NAGARJUNA REDDY, J

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Dt.05-03-2013 Mva/Vgb

M. Thirupalaiah Chetty, v. D.K. Srinivasa Rao (Died per L.R.)

Case brief

What is this about?

What did the court decide?

M. Thirupalaiah Chetty, v. D.K. Srinivasa Rao (Died per L.R.)

Case brief

What is this about?

What did the court decide?

What the court decided

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