IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION Nos.5144 and 5223 of 2007 CRP.No.5144 of 2007 BETWEEN Chennapragada Subhadra Devi and three others. ... PETITIONERS AND Chennapragada Vasudeva Rao. ...RESPONDENT CRP.No.5223 of 2007 BETWEEN Chennapragada Subhadra Devi and three others. ... PETITIONERS AND Chennapragada Lakshmi Narasimham and others. ...RESPONDENTS Counsel for the Petitioners : MR. A.V. SESHA SAI Counsel for the Respondents: MR. SAI GANGADHAR CHAMARTHY The Court made the following: COMMON ORDER: These two revisions are at the instance of the decree holders in O.S.No.31 of 1995 dated 27.07.2000. The relevant portion of the decree, clauses 1 to 5, passed in favour of the decree holders reads as follows: 1. that the suit be and the same is hereby dismissed for partition of item 1 to 5 of plaint schedule, for past profits from all the plaint schedule properties and for the future profits against items 1 to 5 of plaint schedule properties; 2. that the suit be and the same is hereby decreed in part in favour of the plaintiffs and against the defendants and that the defendants 7 and 10 be and are hereby directed to deliver possession of 6th item of plaint schedule house property to the plaintiffs within two months from this date (27.7.2000); 3. that in case of default of the defendants 7 and 10 in comply with the clause No.2 supra, the plaintiffs be and are hereby entitled to possession of the said property through process of court; 4. that the 7th defendant to pay future profits in respect of item No.6 of house property on ascertainment of the same by way of separate application under Order 20 Rule 12 CPC; 5. that both parties do bear their own costs. 2. As against the said decree, to the extent of the disallowed claim, the plaintiffs filed an appeal before the lower appellate Court in A.S.No.152 of 2000, which was allowed under judgment and decree dated 19.12.2005. The relevant portion of the appellate decree to the extent of clauses 1 and 5 is as follows: 1. That the appeal be and the same is hereby allowed setting aside the Judgment and Decree in O.S.No.31/199 dated 27-7-2000 on the file of Senior Civil Judge’s Court, Narsapur in so far as dismissing suit of plaintiffs for partition of item 1 of 5 of plaint schedule properties. … … … 5. That the Cross-objections filed on behalf of Defendants/Respondents be and the same is hereby dismissed confirming the decree and judgment of the lower court in so far as eviction of defendants 7 and 10 and deliver possession of item No.6 of plaint schedule property to the plaintiffs, within two months from the date of judgment. 3. The defendants 1, 3, 4, 6 and 8 to 10 filed cross-objections in the said appeal, which was also dismissed by the lower appellate Court and now second appeal being S.A.No.203 of 2006 is preferred by the said defendants before this Court. By order dated 11.07.2006, this Court granted an interim order in the said second appeal staying passing of the final decree while at the same time permitting all proceedings pursuant to the preliminary decree to go on. Apparently, this Court passed the said order to the extent of relief of partition decree under the decree aforesaid. While that is the position, petitioner herein filed EP.No.43 of 2007 before the Court below seeking execution of the decree to the extent of possession of item 6 of the plaint schedule property from defendants 7 and 10 as is evident from clause (2) of the decree in the suit, extracted above. In the said EP, the tenth judgment debtor filed an application being E.A.No.427 of 2007 seeking stay of EP for a period of 15 days to enable him to file revision before this Court against the order of delivery passed by the Court below. Under the impugned orders, however, the executing Court, apparently, under an impression that EA.No.427 of 2007 is a claim petition, has proceeded to hold that in view of the interim stay granted by this Court in the second appeal, referred to above, the EP itself is premature and liable to be dismissed and has not only dismissed the EA.No.427 of 2007 but has also dismissed the EP. Questioning both the said orders of the executing Court, these two revisions are preferred. 4. Heard the learned counsel for the petitioners as well as the learned counsel for the respondents. 5. From a prima facie view of the decrees of the Courts below, which are extracted above, it appears that the decree of delivery of possession of item 6 was passed against defendants 7 and 10 and there appears to be no appeal preferred by the seventh defendant. The cross-objections said to have been filed by the tenth defendant, which were dismissed under the decree of the lower appellate Court, extracted above, is said to be now the subject matter of the second appeal. It appears to me, prima facie, that the decree with respect to item 6 had to be executed in the absence of any stay against execution on that decree. The interim orders of this Court, apparently, relate to the preliminary decree of partition, which is covered by item 1 of the decree above and the decree for delivery of possession referable to item 6 of the decree does not appear to have been stayed by this Court. In any case, the tenth judgment debtor was only seeking 15 days time in the EA. However, the Court below has dismissed EA.No.427 of 2007 and has also dismissed the EP itself. The impugned orders of the executing Court are, therefore, clearly inexplicable in view of the record of the case and cannot be sustained. 6. In the result, therefore, the order passed by the Court below in E.A.No.427 of 2007 dated 27.08.2007 is set aside. E.P.No.43 of 2007 is restored to file and shall be entertained and disposed of by the executing Court in accordance with law. So far as E.A.No.427 of 2007 is concerned, its efficacy having been lost by afflux of time, the decretal order shall remain undisturbed. Consequently, the order dated 27.08.2007 passed in E.P.No.43 of 2007 is also set aside and EP shall stand restored and shall be heard and disposed of in accordance with law. The civil revision petitions are accordingly disposed of. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 7, 2011 DSK