THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1067 of 1998 Date of order: 7.9.2010 Between: Gode Sakkubai and others …Petitioners and Adapa China Venkataswami and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 1067 of 1998 ORDER: Heard learned counsel for the petitioners on 26.8.2010 and as nobody appeared for the respondents, it was posted for judgment on 6.9.2010. Yesterday and today there is no appearance either by the respondents’ counsel or by the petitioners’ counsel. The office endorsement as well as the cause list shows that the respondents 5 and 7 to 10 are served by substitute service and other respondents are not necessary parties. This revision petition is, therefore, being disposed of. The order impugned in this revision petition was passed by the executing court allowing EA No. 1086 of 1996 in O.S.No. 42 of 1962 filed by the respondents herein. The said application was filed resisting a final decree for partition including the relief sought for by the decree holders for possession of portions of property in occupation of the respondents herein. The respondents herein had pleaded that they are tenants in occupation of different portions and as such in execution of the decree they cannot be dispossessed and that only a symbolic possession can be delivered under Order 21, Rule 36 of Civil Procedure Code. The said contention, though opposed by the petitioners herein by filing a detailed counter, was accepted by the court below holding that Order 21, Rule 36 of Civil Procedure Code is required to be followed. The learned counsel for the petitioners pointed out that the contesting respondents were parties to both preliminary and final decrees and that they did not plead at any time that they are tenants and on the contrary the said contesting respondents’ status as tenants was denied by the orders of this Court in AAO No. 1829 of 1991 dated 4.9.1993 as well as to the extent of other contesting respondents by judgment in OS No. 1013 of 1985 dated 25.3.1989. It is also contended that the 5th petitioner’s father had allowed the respondent No.4 to occupy the site and permission of the court below in IA No. 1376 of 1966 in OS No. 42 of 1962 was also obtained by the said occupant. Reference is also made to orders in IA No. 1196 of 1966 and 1935 of 1966 in the said suit dated 8.2.1968. The contention of the petitioners, therefore, is that the respondents have illegally occupied the vacant site after 1956 i.e., after the death of Smt. G. Varalaxamma, the original owner and in view of that, neither there is any subsisting tenancy in their favour nor the said tenancy can be said to be with reference to any building and consequently the protection sought for by the respondents herein under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 is not available. The aforesaid contentions including reliance upon the judgment of this Court which is marked as Ex.B1 have not been considered by the executing court. The contentions of the petitioners 4 and 5 therefore, must be appreciated in conformity with the aforesaid judgment. The Court below also has not kept in mind the written statement-Ex.B2 in OS No. 42 of 1962 filed by the respondents 1 and 2 herein. The said document and the various orders passed by this Court and that of the court below during the pendency of the suit, therefore, clearly show that the status of tenancy claimed by the respondents herein was adjudicated in the said earlier proceedings and they have attained finality. Whether the self-same question is available for consideration by the executing court is a matter which has escaped its attention. The order impugned does not show any consideration of these various aspects which are noticed from the impugned order itself while narrating the facts. The documents Exs.B1, 2 and 4 together with Ex.A1- judgment of the Subordinate court in OS No. 42 of 1962 have, therefore, not been properly appreciated by the executing court. I am, therefore, of the view that the conclusions reached by the executing court under the impugned order are clearly in ignorance of the various proceedings referred to above and in that view of the mater, the impugned order of the executing court is not sustainable. Accordingly the impugned order is set aside and EA No. 1086 of 1996 is remitted to the learned Additional Subordinate Judge, Guntur to reconsider afresh the record of the suit including the earlier orders as briefly indicated above and decide the following questions, (1) Whether it is open for the respondents herein to agitate the claim of tenancy in the light of the adjudications under Exs.A1 and B1, 2 and 4 referred to above? (2) Whether the executing court can declare the respondents herein as tenants of the property in view of adjudications in preliminary and final decree proceedings? (3) If so, whether the respondents herein are protected under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960? The revision petition is accordingly allowed. There shall be no order as to costs. Since the suit is of the year 1962 and the execution proceedings are of 1996, the executing court is directed to dispose of EA No. 1086 of 1996 remitted hereunder within two months from the date of receipt of a copy of this Court. All the contentions of both the parties are left open to be agitated before the executing court. _________________________ VILAS V. AFZULPURKAR, J Dt. 7.9.2010 KR