IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.2247 OF 2010 Between : Bodanki Savitri …PETITIONER A N D Modaligar Sarojini and another …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.2247 OF 2010 ORDER: This Civil Revision Petition, under Section 22 of the Andhra Pradesh (Lease, Rent and Eviction) Control Act, 1960, is directed against the order, dated 01.06.2010, in G.R.No.3963 in E.A.No.Nil of 2010 in E.P.No.64 of 2008 in R.C.C.No.23 of 1997, on the file of the Principal Junior Civil Judge, Vizianagaram, whereunder and whereby, the petition filed under Order XXVI Rule 9 and Section 151 of the C.P.C. for appointment of commissioner to make local inspection and to take measurements of ‘A’ and ‘B’ schedule properties as mentioned in the schedule, was rejected. 2. The brief facts that are necessary for disposal of the present revision petition may be stated as follows: The Petitioner/Judgment Debtor claims to be the absolute owner of the property bearing D.No.7-4-12 in T.S.No.944, Block No.21, Asst.No.4706, having purchased the same from Smt Bhogavilli Ramanamma under a registered sale deed, dated 01.09.1994 and since the date of purchase, she has been paying the taxes to the municipal authorities and also got mutated her name in the concerned records. The respondents/decree holders herein filed R.C.C.No.23 of 1997, on the file of Principal Junior Civil Judge,Vizianagaram-cum-Rent Controller, for eviction of the Judgment debtor from the house property bearing D.No.7-4-11 with specific boundaries as mentioned in the schedule. The trial court passed eviction order. Against the said order the petitioner / Judgment Debtor preferred an appeal and the said order was set aside. Again the respondents preferred revision before this Court, and the same was allowed. Later the respondents filed E.P.for delivery of the property and the Court ordered delivery of the property. 3. When the Court Amin inspected the property as shown by the decree holders, he found that the property was not tallied with the E.P. schedule and returned the warrant. 4. It is the case of petitioner that the respondents had shown the property of the petitioner described in ‘A’ schedule. So to identify the properties of ‘A’ and ‘B’ schedule, appointment of commissioner is necessary. For that the petitioner/Judgment debtor filed this petition. But the same was rejected by the trial court, on the ground that the ground floor of the property was already delivered, that still up-stair portion is to be delivered and this petition is filed with a malafide intention to obstruct the delivery of the property. Challenging the same the present revision petition is filed. 5. Learned counsel for the petitioner/Judgment debtor contended that the petitioner is the absolute owner in respect of house bearing D.No.7-4-12 situated in Vizianagaram having purchased the same under a registered sale deed, dated 01.09.1994 and she has no objection for executing the decree in respect of house bearing No.7-4- 11. But the Amin inspected the property and retuned the warrant saying that the schedule property is not tallying with the schedule mentioned in the execution proceedings. Considering the objections of the Decree holder, the petition was simply rejected by the trial Court and therefore, she prays to set aside the same. 6. On the other hand, the learned counsel for the respondents contended that the extent of assignment and the door number as mentioned in the E.P. schedule is not in dispute that E.P. was filed only for eviction of the tenant in respect of house bearing D.No.7-4-11 situated in Rangireeju Street, Vizianagaram, with specific boundaries and measurements that therefore, the executing court cannot go behind the decree that the decree holder is seeking eviction order as per the decree and therefore, the trial court rightly rejected the same and there are no grounds to interfere with the same. 7. The factual matrix which are not in dispute are that the eviction order was passed originally by the trial court, but the said order was set aside by the appellate Court on appeal. This court in C.R.P.No.4873 of 2005 dated 30-09-2008, set aside the order of the appellate court and directed the petitioner to evict the petition schedule premises on or before 31.12.2008. 8. Now the issue to be resolved in the executing court is whether schedule property is identifiable or not. Whether the advocate commissioner can be appointed to localize for inspection and measurements of ‘A’ and ‘B’ schedule properties with reference to the documents. It is not in dispute that the tenant was already evicted from the ground floor portion of schedule premises. The contention of the petitioner is that the said order is illegal. According to the decree holder the order of eviction was through process of the Court. Without expressing any opinion whether such eviction is correct or proper, but, the fact remains the delivery was effected to the decree holder. 9. The learned counsel for the petitioner relied on a decision reported in BRAHMDEO CHAUDHARY VS. RISHIKESH PRASAD JAISWAL AND ANOTHER[1] , wherein it was held thus: “In view of the aforesaid settled legal position, therefore, and in the light of the statutory scheme discussed by us earlier it must be held that Respondent 1 decree- holder’s application dated 06.05.1991 praying for issuance of warrant for delivery of possession within the aid of armed force, was in substance for removal of obstruction offered by the appellant and others under Order 21, Rule 97 CPC and had to be adjudicated upon as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 101 and Order 21, Rule 98. In this connection the Court had also to follow the procedure laid down by Order 21, Rule 105 which enjoins the executing court to which an application is made under any of the foregoing rules of the order to fix a date of hearing of the application. As the executing court refused to adjudicate upon the obstruction and the claim of the appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law…………….” From the above decision, it is clear that when an objection is raised for delivery of the schedule property, a specific procedure is contemplated under Order XXI Rule 105 C.P.C. and that procedure has to be followed. The executing court has to adjudicate upon the objections of the claim of the person, who obstructed the delivery. There is no dispute about law laid down by the Hon’ble Supreme Court. 10. The petitioner has not filed such a petition under Order XXI Rule 97-2 (Rules101 and 98 of the C.P.C) raising such an objection. Even otherwise, this Court in CRP Nos.2059 and 2060 of 2009, dated 06.11.2009, held that the order of eviction originally passed by the Rent Controller was reversed by this Court in C.R.P.No.4873 of 2005 dated 30.09.2008, directing the respondents / Judgment debtor to vacate the schedule property and hand over the possession to the landlords by 31.12.2008, and the said order has become final. It is also observed that as the order of eviction has become final, it is not open to the petitioner / Judgment debtor to raise a dispute regarding the identity of the property. At this stage she is bound to delivery the vacant possession of the schedule property as ordered by this Court. The obstruction caused to the Amin more than one occasion for effecting delivery cannot be countenanced as the Amin who is the Officer of the Court entrusted with the execution of the warrant has reported that physical obstruction was caused by the others for effecting the delivery. Therefore, with a view to prolong the litigation, the petition appears to have been filed, and that was rightly rejected by the Court. 11. Learned counsel for the petitioner also placed strong reliance in a decision reported in TANZEEM-E-SUFIA, APPELLANT V.BIBI HALIMAN AND OTHERS, RESPONDENTS[2], wherein it was held thus: “We find that in the case in hand the appellant is claiming its independent right over the property and asserts possession thereof. Order 21, Rule 101 clearly provides that all questions relating to right, title or interest in property relevant to the adjudication of the application, shall be dealt with the application and not by a separate suit. The High Court therefore, erred in refusing to hear the appellant, on the ground that it has already filed a suit for declaration of its title and for declaration that the decree passed in title suit No.8 of 1983 is not binding on it. The provision contained under Order 21 Rule 101 CPC seems to have escaped notice of the High Court while passing the order. We would also like to observe that reasoning given by the execution Court while rejecting the application of the appellant as indicated in the order of the High Court, that the remedy of the appellant would only lie by moving an application under Order 21Rule 99 CPC is also erroneous as in case of Brahamdeo Chaudhary’ (supra), it has been held that it should not be insisted that possession be delivered first and the objector may later on move that Court under Order 21 Rule 99 CPC”. Even the above decision has no application to the present facts of the case, that is a case where the third party is claiming independent right over the property. But in this case, the petitioner has not claiming any independent right in respect of the house bearing D.No.7-4-11, but he is claiming right only in respect of house bearing D.No.7-11-12, but the decree holder is not entitled for any right or interest over that property. 12. On the other hand, the learned counsel for the respondent contended that he is only seeking the execution of the decree in respect of house bearing D.No.7-4-11 with specific boundaries and specific extent of site. For that he relied upon a decision reported in RAVINDER KAUR V. ASHOK KUMAR AND ANOTHER[3] wherein it was held thus: “Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of Court. Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system”. So from the above decision, it is clear that raising the dispute with regard to the identity of the suit for the first time in executing Court and with regard to the schedule property is, only to delay the proceedings. 13. There cannot be any dispute that with regard to the identity of the property or survey number, boundaries that prevailed over the extent. This has been shown by Division Bench of this Court in Y.SUBBA RAO (DIED) AND OTHERS VS. AMIZUNNISA BEGUM AND OTHERS[4], wherein it was held thus: “When the properties described by boundaries which can be identified – Mistake of identify can be ignored”. 14. When this court has already given a finding that it is not open to the petitioner to raise the dispute regarding the identity of the property, the question of appointment of commissioner does not arise. Hence the trial court rightly rejected the application for appointment of commissioner. There are no grounds to interfere with the same. 15. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J JUNE 10, 2010 YVL [1] (1997) 3 SCC 694 [2] AIR 2002 SC 3083 [3] 2004(2) ALT 10 (SC) [4] AIR 1984 NOV 300 (Andhra Pradesh)