HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.5723 OF 2009 DATE:05-12-2009 BETWEEN: Pinnamaraju Subba Rao & Another …Petitioners AND Nelakanti Gowrisankara Marthandamurthy (died per L.R.) & Another. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.5723 OF 2009 ORDER: Petitioners-judgment debtors filed this revision under Article 227 of Constitution of India assailing the orders of the Junior Civil Judge, Mummidivaram, dated 10.11.2009 in dismissing E.A.No.112 of 2009 in E.P.No.72 of 2003 in ATC.No.28 of 1994 filed to receive additional counter filed by the petitioners. The decree holder-1st respondent herein filed ATC.No.28 of 1994 before the Special Officer, Mummidivaram for eviction of the revision petitioners on the ground of willful default in payment of rent. Whereas, the petitioners filed A.T.C.No.23 of 1994 for declaration of statutory tenancy rights in respect of the self same property. The ATC filed by the decree holder was allowed and the ATC filed by the petitioners was dismissed. During the pendency of the further proceedings, the decree holder-1st respondent died and therefore, his son, second respondent herein came on record as his legal representative. The eviction order passed by the Special Officer, Mummidivaram in A.T.C.No.28 of 1994 has been confirmed in appeal and also in revision by this Court and also by the Supreme Court. When the appeal before the Supreme Court was pending, the son of the decree holder, 2nd respondent herein initiated the execution proceedings by filing E.P.No.72 of 2003, in which, the revision petitioners filed a petition under Section 47 C.P.C. questioning the execution proceedings on the ground that the daughter of 1st decree holder was not brought on record and as such the 2nd respondent alone is not entitled to execute the decree, and that the decree passed by the Special Officer against the 2nd petitioner ordering delivery of property is without jurisdiction and the same is not executable. At that stage, the impugned E.A. was filed by the revision petitioners to receive the additional counter. The lower Court rightly observed that during the pendency of the main A.T.C. when the 2nd respondent was added as legal heir of the 1st respondent- decree holder, ample opportunity was given to the petitioners to contest the claim of 2nd respondent for being added as legal representative, but the petitioners did not choose to raise any objection. Further as the 1st respondent was not died during the pendency of the execution proceedings, the executing Court cannot decide the validity of the decree except as per Section 47 of C.P.C., which objection was already rejected. It was also observed that the petitioners filed the counter on 26.8.2009 i.e. after the appeal filed by them before the Supreme Court was dismissed, and that they have not stated in the counter about the adding of the legal representatives, as alleged, and therefore, it was held that the impugned application is filed only to drag on the proceedings in order to avoid the delivery of the schedule property. The discretion so exercised by the lower Court in dismissing the impugned E.A. does not suffer from any illegality or infirmity warranting interference by this Court. The revision fails and is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. DECEMBER 05, 2009 Tsr.