IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD TUESDAY, THE FIRST DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3614 OF 2010 Between: Yenuganti China Appa Rao …Petitioner A n d Kalari Rama Dasu and another ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3614 OF 2010 ORDER: This civil revision petition is directed against the order dated 06-07-2010 in E.P.No.33 of 2010 in O.S.No.615 of 1999, on the file of the Senior Civil Judge, Mangalagiri, Guntur District, wherein the said E.P was closed recording that delivery of the schedule property was effected. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The respondents herein filed the suit against the petitioners for permanent injunction in respect of the EP schedule property of Ac.2-20 cents in D.No.1096/A & C of Tadikonda village. After full-fledged trial, the suit was decreed on 19.04.2006. The respondents filed EP under Order XXI Rule 32 CPC alleging that the petitioners encroached upon Ac.0-90 cents out of the schedule land. The respondents/decree holders further alleged that on their application, the Mandal Surveyor measured the EP schedule land and fixed the boundary stones on 08.03.2007, but the petitioner/judgment debtor highhandedly removed the same on 09.03.2007 and on his application, the Tahasildar, Tadikonda has also ordered enquiry by the Mandal Surveyor, who inspected the land and filed a report on 15.03.2007 stating that the boundary stones were found removed. The respondents/decree holders further alleged that on 16.06.2008 they filed another application before the Tahasildar for deputing the Mandal Surveyor to measure the land and fix the boundaries, but the petitioner/judgment debtor caused obstruction for the measurements. Thereafter, the petitioner filed EP.No.33 of 2010 for removal of the encroachment of the petitioner/judgment debtor and put the respondents/decree holders in possession with the assistance of Mandal Surveyor. It is further alleged that the Court deputed an Amin to deliver the property on 13.06.2010, but the judgment debtor removed the boundary stones on 15.06.2010 and the decree holders gave a complaint to the police also. The decree holders sought detention of the judgment debtor in civil prison under Order XXI Rule 32 CPC. Thus what is complained of in the EP is the alleged violation of the decree by the petitioner/judgment debtor and the relief prayed for in the EP is for detention of the judgment debtor in civil prison for the said violation under Order XXI Rule 32 CPC. However, the execution Court on 03.06.2010 while registering the EP directed delivery of the schedule property and issued a warrant of delivery under Order XXI Rule 35 CPC and in pursuance thereof, the Amin filed a report stating that warrant has been executed by delivering the schedule property to the decree holders by removing the judgment debtor from possession on 13.06.2010. The said delivery was recorded by the Court on 06.07.2010 and the EP was closed. As rightly contended by the learned counsel for the petitioner/ judgment debtor, the Court committed error of jurisdiction by directing delivery of the property under Order XXI Rule 35 CPC when the relief prayed for in the EP is for detention of judgment debtor in civil prison under Order XXI Rule 32 CPC for alleged violation of the orders of injunction. It appears that the decree holders filed a separate EP i.e., EP.No.53 of 2010 seeking detention of the judgment debtor in civil prison under Order XXI Rule 32 CPC, but in E.P.No.33 of 2010 also wherein the impugned orders were passed, the decree holders have prayed for removal of judgment debtor from the extent of Ac.0-90 cents and delivery of possession to the decree holders with the assistance of Court Amin and Mandal Surveyor, but the said EP is purported to have been filed under Order XXI Rule 32 CPC. 4. The suit is filed for permanent injunction. The decree passed is one for injunction restraining the judgment debtor from interfering with the possession and enjoyment of the schedule property by the decree holders. The question of directing delivery of possession of the schedule property in favour of the decree holders in pursuance of the said decree does not simply arise. The EP itself filed for recovery of possession is misconceived and beyond the scope of the decree itself, which is only for injunction. Issuance of warrant of delivery in respect of the schedule land in execution of a decree for injunction is clearly misconceived and without jurisdiction. The impugned order, recording delivery, is equally unsustainable. No notice is also issued to the judgment debtor under Rule 22 though the EP was filed four years after passing of the decree and no reasons are recorded for dispensing with such notice in term of sub-rule (2) of order XXII. 5. The impugned order, directing delivery and recording the said delivery in execution of a decree for injunction, is clearly unsustainable and is liable to be set aside. It is, however, open to the decree holders to avail other remedies available under law. The decree schedule and the EP are in respect of Ac.2-20 gts of land in D.No.1096/A & C. According to the respondents/decree holders, the petitioner/judgment debtor encroached Ac.0-90 cents out of EP schedule property. The descriptive particulars of the said Ac.0-90 cents out of Ac.2-20 cents are nowhere furnished. It is not known in respect of which extent of Ac.0-90 cents out of Ac.2-20 cents, delivery was effected. The report of the Amin is also silent about the same. In fact, the question of directing delivery of the property in the EP filed seeking enforcement of decree for permanent injunction does not arise. 6. In the result, the civil revision petition is allowed as stated above. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 01st November, 2011 Lrkm.