IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY THIRD DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.571 of 2011 Between: Punuru Bujjamma … Petitioner and Vallepu Sambaiah and others … Respondents THE HONOURABLE SRI JUSTICE G.CHANDRAIAH C.R.P. No.571 of 2011 ORDER: Heard the learned counsel for the petitioner and the learned counsel for the respondents. This revision petition is filed aggrieved by the order dated 31.12.2010 passed in E.A. No.377 of 2009 in E.P. No.108 of 2005 in O.S. No.543 of 1980 by the learned Principal Junior Civil Judge, Kovuru, Potti Sreeramulu Nellore District. The revision petitioner is the decree holder and the respondents are the judgment debtors. E.A. No.377 of 2009 was filed by the decree holder under Section 151 CPC with a prayer to order for delivery of vacant possession of the E.P. schedule property by demolishing the unauthorized construction on the Southern side of the E.P. schedule property. The said E.A. was ordered not by granting the relief as sought for by the decree holder but appointed an Advocate Commissioner to ascertain, with the help of the Mandal Surveyor, whether the constructions made by the judgment debtors within the channel bund or whether the said constructions are made in the E.P. schedule property. Assailing the same, the decree holder filed the present revision petition. The learned counsel for the revision petitioner, decree holder, would submit that instead of allowing the E.A. No.377 of 2009 by granting the relief as sought for, the Court below appointed an Advocate Commissioner, which would lead to further more complications of the issue and also consequently delay the matter in delivering the possession of the suit schedule property to the decree holder. He further contended that on the earlier occasion, the Court below had passed an order on 05.09.2008 in E.P. No.108 of 2005 in O.S. No.543 of 1980 ordering the delivery of E.P. schedule property and thereafter, the judgment debtor filed a petition seeking to review the order passed on 05.09.2008 in E.P. No.108 of 2005 wherein the Court below had categorically found that the review petition has been filed only with an intention to drag on the proceedings but not otherwise and even if the review petition was allowed, certainly it would cause hardship to the decree holder and therefore, the review petition was dismissed vide its order dated 14.11.2008. Therefore, there was no ambiguity in the contention of the decree holder that the constructions have been made in the E.P. schedule property, during the pendency of the suit and therefore, the unauthorized constructions needs to be demolished, before delivering the possession to the decree holder. Under those circumstances only, the decree holder filed the E.A. No.377 of 2009 under Section 151 CPC praying to order for delivery of vacant possession of the E.P. schedule property by demolishing the unauthorized constructions on the Southern side of the E.P. schedule property, wherein the Court below had wrongly appointed the Advocate Commissioner. Therefore, the order dated 31.12.2010 passed in E.A. No.377 of 2009 in E.P. No.108 of 2005 in O.S. No.543 of 1998 is illegal. On the other hand, the learned counsel appearing for the respondents, judgment debtors, would submit that the construction that is made in the property is different from the E.P. schedule property. Therefore, having regard to the stand taken by the judgment debtors that the property, wherein the construction was made, is the different property from the E.P. schedule property and the E.P. schedule property is nothing to do with the property wherein the construction was made, therefore, the Court below had rightly appointed the Advocate Commissioner to identify whether the construction made by the judgment debtors is a part and parcel of the E.P. schedule property or other than the E.P. schedule property, before ordering for demolition of the construction. Therefore, the present revision petitioner is liable to be dismissed by upholding the order passed by the Court below. Having regard to stand taken by both the counsel, the point that arises for consideration is as to whether the order passed by the Court below, which is impugned under the present revision petition, suffers from any legal infirmity? The following are the facts, which are not in dispute, that the revision petitioner, decree holder, is the plaintiff having purchased the property under the Ex.A-2 sale deed dated 05.12.1979 to an extent of 50 Ankanams. On the ground that the respondents, judgment debtors, are sought to interfere with the peaceful possession and enjoyment of the property, the decree holder filed O.S. No.543 of 1998 on the file of the learned Principal District Munsif, Kovur seeking the relief of permanent injunction on the ground that as there was increase in the value of the property in the suit locality, to extract more amount, the defendant was trying to interfere with the decree holder’s possession and enjoyment of the suit schedule property. Thereafter, the said suit was converted to that of recovery of possession. By judgment and decree dated 06.09.1988, the said suit was decreed. Aggrieved by the same, the judgment debtors preferred an appeal in A.S. No.35 of 1988 on the file of the learned Subordinate Judge, Kovur, Nellore District, which was dismissed by the first appellate Court on 29.12.1989. Assailing the same, the judgment debtors preferred second appeal in S.A. No.423 of 1990 on the file of this Court, which was dismissed confirming the judgment rendered by the first appellate Court in A.S. No.35 of 1988. Thereafter, the decree holder filed E.P. No.108 of 2005 in O.S. No.543 of 1998 for execution of the judgment and decree dated 06.09.1988 passed in O.S. No.543 of 1980 and the same was ordered by order dated 05.09.2008. The judgment debtors filed a petition seeking to review the order dated 05.09.2008, passed in E.P. No.108 of 2005 and the Court below vide its order dated 14.11.2008 dismissed the review petition holding that a speaking order was passed on 05.09.2008 in the E.P. No.108 of 2005 and further holding that the attitude of the judgment debtors in filing the review petition, seeking to review the order dated 05.09.2008 passed in E.P. No.108 of 2005 belatedly that too after dragging on the matter successfully for a period of about 28 years, is highly objectionable. Further, it is also held that the valuation certificate, which is part and parcel of the decree passed by the Court on 06.09.1988 clearly discloses the extent of land as Rice Mill and site about 50 Ankanams and the schedule is given with specific boundaries. Therefore, as the decree is very clear about the extent and boundaries of the E.P. schedule property, which has to be delivered to the decree holder, the Court below did not find any necessity to demarcate the boundary between the channel poramboke and E.P. schedule property, before ordering the delivery of E.P. schedule property to the decree holder and there are no valid and tenable grounds to allow the review petition. Eventually, the Court below came to the conclusion that the review petition is filed only to drag on the proceedings, but not otherwise and even if the review petition is allowed certainly it would cause hardship to the decree holder and therefore, dismissed the review petition vide its order dated 14.11.2008. Thereafter, the decree holder filed the E.A. No.377 of 2009 under Section 151 CPC with a prayer to order for delivery of the vacant possession of the E.P. schedule property by demolishing the unauthorized construction on the Southern side of the E.P. schedule property. The contention of the decree holder was that having filed the E.P. for delivery of possession of E.P. schedule property, along with the rice mill in the said property, filed a Memo on 30.09.2008 for delivery of vacant site as in the meanwhile, the rice mill was collapsed. Subsequent to the said Memo, the judgment debtors made unauthorized constructions on the Southern side of the E.P. schedule property approximately in an extent of four ankanams. Thus, the delivery warrant issued could not be executed. Therefore, the decree holder sought for delivery of vacant possession of the E.P. schedule property by demolishing the unauthorized construction on the Southern side of the E.P. schedule property. On behalf of the judgment debtors, filed counter stating that the said constructions are made on the channel bund and the said channel is a Government channel. The said construction was made in an extent of six ankanams about 20 years ago. Subsequently, the thatched house was burnt and in its place they constructed a house with asbestos sheet roofing and an open latrine in the year 2000 and they are living there since 30 years. The said construction is made on the Northern bund of the channel poramboku and the said construction was not made subsequent to the memo filed by the decree holder. The Court below, being the executing Court, cannot go beyond the terms of the decree and the decree is only for delivery of the E.P. schedule property with a rice mill and therefore, without ascertaining the exact location, the house of the judgment debtors cannot be ordered for demolition and the decree holder has to file a suit for mandatory injunction. Having regard to the said pleas, the Court below had framed the issue that whether the alleged constructions are made in the E.P. schedule property, and whether the petitioner is entitled for the relief as prayed for, 2) to what relief? The Court below found that the version of the decree holder was that the judgment debtors made constructions in an extent of four ankanams on the Southern side of the E.P. schedule property. On the other hand, the contention of the judgment debtors was that the said constructions are made over the channel poramboku but not in the E.P. schedule property. The contention of the judgment debtors is that since 30 years, the 2nd judgment debtor has been living in the house and that the said constructions are not made in the E.P. schedule property. Having regard to the said plea, the Court below had verified the judgment of this Court passed in S.A. No.423 of 1990 and found that the dispute is with regard to existence of constructions in an extent of 10 ankanams was raised in the suit by the judgment debtors and the contention of the decree holder was that the said constructions is an extent of 10 ankanams are made subsequent to the filing of the suit and during the subsistence of interim injunction orders and the said extent is shown as B schedule in the plaint. Further, it is also found that the entire reading of the said judgment goes to show that the contention of the judgment debtors that they retained 10 ankanams of the site within the boundaries of Ex.A-2 of the suit was negatived. Further it is also found from the said judgment that the judgment debtors admitted of existence of the two zink sheets shed in an extent of 10 ankanams which is the B schedule property. The encroached portion of 10 ankanams is shown as B schedule and the said B schedule property is within the decree schedule property. Under the above situation, the Court below had examined as to whether the constructions in the said 10 ankanams and the constructions, which according to the 2nd judgment debtor, are made subsequent to the demolition of thatched house are one and the same. If the said constructions in 10 ankanams, which are made pending suit, and the constructions, which are being attributed to the judgement debtors, are one and the same, the said constructions are bound to be removed. But, if the said constructions, as noted in the judgment passed in the S.A. No.423 of 1990, are in existence, as on the date of filing of the E.P., the decree holder should have prayed for removing those constructions in the E.P., but the decree holder only prayed for delivery of the E.P. schedule property, without praying for demolishing of any constructions made in the E.P. schedule property. Therefore, the Court had entertained a doubt that whether subsequent to the disposal of the second appeal, the construction, made by the judgment debtors, during pendency of suit in the plaint schedule property, was removed or whether these constructions, which the decree holder is prying to be removed, are the same or different from one another was not clear. Therefore, the Court below felt that it is also to be examined whether the decree holder, under the guise of executing the decree, is praying for demolishing of the constructions, which are already in existence even during the pendency of the suit, without making such prayer in the E.P. Further, the decree holder did not pray for removal of constructions in the E.P., the judgment debtors taking advantage of the same are trying to project the constructions are made in the channel poramboku but not in E.P. schedule property. Therefore, to avoid further ambiguity in the order to be passed by the Court below before ordering for delivery of possession to the decree holder in the process of executing the order made in the E.P. the Court below had appointed an Advocate Commissioner to ascertain, with the help of the Mandal Surveyor, whether the constructions made by the judgment debtors are made within the channel bund or whether the said constructions are made in the E.P. schedule property. This is the order appears to be passed only in the interest of both the parties to pass an effective order in the E.A. filed by the decree holder for executing the judgment and decree, which was already passed by the Court below on 05.09.2008, which was not given effect. Under those circumstances, I am of the considered view that the Court below had not committed any error in passing the order in E.A. No.377 of 2009 in E.P. No.108 of 2005 in O.S. No.543 of 1980 and it is only in the interest of both the parties to ascertain the E.P. schedule property with that of the property claimed by the judgment debtors, so as to enable the Court below to pass an effective order for implementation of the judgment and decree passed by the Court below. Therefore, I do not see any reason to interfere with the impugned order under the present revision petition and therefore, the present revision petition is liable to be dismissed. Accordingly, this revision petition is dismissed. There shall be no order as to costs. However, I deem it appropriate to direct the Court below to finalise the E.P. proceedings, within a period of two months, from the date of receipt of a copy of this order as the matter pertains to the year of 1980 and so much time is elapsed and in view of the fact that this matter is attained finality by dismissing the S.A. No.423 of 1990. Accordingly, the Court below is directed as stated hereinabove. ________________________ JUSTICE G.CHANDRAIAH Date: 23.08.2011 LSK