IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.746 of 1999 BETWEEN Smt. Kurra Audimamba (died) and another …APPELLANTS AND Ayotha Audinarayana and others. …RESPONDENTS Counsel for the Appellants: MR. V.S.R. ANJANEYULU Counsel for the Respondents: MR. SUBBA REDDY The Court made the following: - JUDGMENT: This appeal is at the instance of the defendant, who questions the judgment and decree of the lower appellate court in A.S.No.32 of 1993 dated 09.06.1999 wherein the suit of the plaintiffs O.S.No.92 of 1981 was decreed. 2. The plaintiffs/respondents herein filed a suit O.S.No.92 of 1981 for delivery of possession of suit schedule site marked as B1-C1 to B2-C2 by directing the defendant to deliver vacant possession of the site and for mandatory injunction by directing the defendant for filling up the well portion dug by her in the aforesaid property. 3. The plaint allegations, in brief, are that the plaintiffs suffered a decree in O.S.No.20 of 1967 with respect to 9/10 cents of land and in execution of the said decree, the plaintiffs were dispossessed vide orders of the District Munsif, Darsi in E.P.No.155 of 1975 in O.S.No.20 of 1967. The delivery of possession to the decree holder (appellant herein) was recorded by the Court vide delivery receipt dated 21.11.1975. Thereafter, the plaintiffs herein filed E.A.No.331 of 1976 before the said executing Court complaining of excess execution and sought re-delivery of the excess area under Section 47 of the Code of Civil Procedure, 1908. On consideration of the said application, the said executing Court came to the conclusion that execution, undoubtedly, was in excess of the decree and thereby the delivery effected on 21.11.1975 was treated as null and void and it was ordered that fresh warrant of delivery of possession under Order 21 Rule 35 CPC be issued. EP.No.155 of 1975 was, therefore, reopened for further appropriate orders after receipt of bailiff’s report on execution of the decree. 4. It appears thereafter that the said EP was posted for the decree holder (appellant herein) to pay tom tom charges of Rs.3/- and consequently, after giving several opportunities and on finding that the said tom tom charges are not deposited by the said decree holder, the EP was terminated on 29.12.1975. Consequently, therefore, the respondents herein could not get re-delivery of the excess area whereupon they have filed the present suit O.S.No.92 of 1981 before the District Munsif, Darsi. 5. The said suit was contested by the appellant herein, inter alia, raising various pleas including the plea that the suit is not maintainable and that consequent on delivery of possession the Court ceases to have jurisdiction to go into the merits of the same. On consideration of oral and documentary evidence, the trial Court found on issue No.2 that there was no excess delivery in favour of the appellant. The trial Court also held that if excess extent is delivered to the decree holder in execution proceedings and the judgment debtor has to file a petition under Section 47 CPC but cannot file a separate suit. However, in view of it’s finding that there was no excess delivery in favour of decree holder; the suit of the respondents/plaintiffs was dismissed. On appeal filed by the respondents, the suit has been decreed under the impugned judgment whereby the lower appellate Court came to hold that the executing Court had already held in E.A.No.331 of 1976 dated 07.08.1980 that there was excess delivery of land and the recording of delivery itself was declared as null and void. To the extent of objection of maintainability of the suit, the lower appellate Court found that executing Court itself permitted the judgment debtors to take appropriate steps to recover excess site and therefore, it proceeded to conclude that the respondents/plaintiffs were entitled to file a separate suit and the suit was maintainable. The appeal was accordingly allowed. Before the lower appellate Court the certified copy of the proceedings in E.P.No.155 of 1975 was produced and marked as additional evidence – Ex.A13, delivery warrant issued to the bailiff as Ex.A14 and delivery receipt as Ex.A15. Questioning the said lower appellate Court’s judgment and decree, this second appeal is preferred by the appellant, which has been admitted on substantial questions of law framed under ground Nos.2 and 3, as under, which primarily deal with question of jurisdiction and maintainability of the present suit in view of language of Section 47 CPC. “2. That the judgment under appeal is against the provisions of Sec 47 CPC, which clearly prohibits the filing of the suit in respect of the events or acts done in pursuance of the decree by Executing Court and whereas the lower Appellate Court decreed the suit, is contrary to the said provisions, which is bad in law. 3. That the judgment and decree under the appeal is against Sec 47 CPC as well as Order 21 Rule 58, which clearly says, any acts done contrary to the decree by the Executing Court the fact, parties have got every right to file an application under Sec 47 as well as under Order 21 Rule 58 CPC, before the Executing Court, and they get heir disputes settled. The said provisions have been ignored and passed a judgment and decree by the Appellate Court, reversing the findings given by the trial Court, which is bad in law.” 6. Mr. V.S.R. Anjaneyulu, learned counsel for the appellant has pointed out that the lower appellate Court was not right in thinking that the respondents were permitted by the executing Court to file a separate suit. He also points out that the mandate of Section 47 (1) CPC bars the suit expressly. He also submits that even otherwise the trial Court found that there was no excess delivery and the said finding could not have been reversed by the lower appellate Court without any material. He submits that the order of the executing Court in E.A.No.331 of 1976 dated 07.08.1980 at the most is an interim order in nature, as no relief was granted to the respondents, who were applicants in E.A.No.331 of 1976. 7. Mr. Subba Reddy, learned counsel for the respondents, on the other hand, submits that the executing Court has categorically found in the order in E.A.No.331 of 1976 that the warrant of possession given to the bailiff was not in conformity with Order 21 Rule 35 CPC nor in accordance with Form-11 of appendix E to CPC. He relies upon paras 13 and 14 of the order of the executing Court, referred to above, and points out categorically that the finding of the executing Court glaringly was that the delivery was in excess of the decree and he points out that the executing Court had declared the delivery receipt as null and void in para 16 of the order and reopened the execution petition EP.No.155 of 1975 from the stage of issuance of fresh warrant of delivery in accordance with law. Learned counsel would also place reliance on Ex.A13 to point out that it is the decree holder, who has failed to deposit tom tom charges, which resulted in termination of EP leaving the respondents with no other remedy except to file a suit. He has placed reliance upon a Division Bench decision of the Calcutta High Court in SMT.USHA GHOSH v. RABINDRA NATH DAS [1] to substantiate that when an execution has been taken up in excess of the decree the Court has to ensure that acts of Court do not prejudice a party and that the said excess delivery has to be restored to the judgment debtor under principles of restitution and notwithstanding Section 47 CPC a separate suit would be maintainable. Learned counsel submits that the facts of the present case are more closer to the facts reported in the said decision and therefore, submits that the substantial questions of law be answered against the appellant. 8. Since Section 47 CPC is the bone of contention between both the parties it would be appropriate to extract the same. 47. Questions to be determined by the Court executing decree. – (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I. - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. – (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.] It would be noticed from the above that all questions relating to execution, discharge or satisfaction of a decree must be agitated before the executing Court. The same scheme is even found extended to Order 21 Rule 58(2) and Order 21 Rule 101 CPC. The legal position in that respect is well settled in JAI NARAIN RAM LUDDIA v. KEDAR NATH KHETAN[2] and RAM CHAND SPG. AND WVG. MILLS v. BIJLI COTTON MILLS [3] . 9. The question, therefore, that falls for consideration is whether the respondents’ suit in question in the present case is maintainable in view of mandate under Section 47 CPC? 10. I am unable to persuade myself to agree with the contention of the learned counsel for the respondents, as upholding the maintainability of the suit would clearly defeat the bar under Section 47 CPC, referred to above. The present case, undoubtedly, demonstrates that the respondents/plaintiffs are seeking relief against excess execution of decree and on an earlier occasion they had, admittedly, moved the executing Court by filing EA.No.331 of 1976. Under the order of the executing Court dated 07.08.1980 marked as Ex.A1 in the present suit the respondents succeeded in part when the executing Court found that there was excess execution of the decree and thereby it had proceeded to declare the recording of delivery as null and void. Thereafter, EP.No.155 of 75 was reopened awaiting fresh warrant of possession and its implementation by the bailiff. However, the relief of delivery was not granted to the respondents as prayed for in the said EA.No.331 of 1976. The proceedings of the executing Court marked as Ex.A13 further show that the executing Court had called the said EP for the decree holder to pay process for issuance of tom tom and in spite of number of opportunities given to the decree holder the same was not paid. The executing Court, therefore, passed final orders dated 09.12.1980 and it would be appropriate to extract the same for the purpose of clarity. “9.12.1980 This E.P. was filed under Order 21 Rules 35, 43 and 66 of the C.P.C. to deliver the site according to the decree and plan to the Decree Holder after evicting the Judgment debtors I and 2 and to attach claim movables of the J. Drs. for the purposes of their sale to realize the cost of the appeal. According to the docket order dated 8.12.1975 the delivery of the site was effected on 21.11.1975. The warrant of attachment of the movable was returned un-executed with an endorsement of the Decree holder to the effect that she received the Warrant amount representing the cost of the appeal. Hence the E.P. terminated on 29.12.75. In E.A.331/76 filed by the J.Drs. it was held by this Court that the delivery of the property to the Decree holder as effected in this E.P. was in excess of the decree and the decree has not been properly executed. Consequently the execution of the decree in this E.P. as effected on 21.11.1975 was treated as null and void and a fresh warrant for delivery of possession of the land under order 21, rule 35 of the C.P.C. in the prescribed form No.11 as incorporated in appendix E to the Code for the delivery of the land to the plaintiff as per the decree was ordered to be issued for proper execution. This E.P. was accordingly reopened for further proceedings and was ordered to be posted to 22nd August, 1980. 3) The Office reported that as no tom tom charges were deposited by the Decree holder, the fresh warrant for delivery of possession of the land as ordered in E.A.331/76 could not be issued. The tom tom charges amounting to Rs.3/0 (Rs. Three only) remained un-deposited despite issue of a reminder memo to the Counsel for the Decree holder. It was however represented by the learned Counsel on 16.9.1980 that a revision petition against the orders dated 7.8.80 in E.A.331/76 was proposed to be filed. But though a period of nearly 3 months has elapsed as on this day, no reference of any revision petition if filed by the Decree holder against the said orders of this court has been furnished. No orders from any of the higher courts are received in this Court in this regard. In the circumstances I am of the opinion that the only course of action left to this Court is to record a proper declaration. Accordingly the Decree holder who is remaining in possession of the site in excess of the decree is declared to be in unauthorized occupation to that extent and the same is subject to be evicted there from in accordance with law, at the instance and option of the J.Drs. who if so advised may move the court through appropriate motion. With these observations this E.P. in so far as it relates to the prayer for the delivery of the site, is dismissed for default of the deposit of the tom tom charges for the purposes of implementation of the orders dated 7.8.1980 in E.A.331/76.” 11. It would be noticed from the last paragraph above that though the execution petition was dismissed for non-compliance by the decree holder, she was declared as being in unauthorized occupation to that extent of site and was liable to be evicted. Option was, therefore, given to the respondents herein to move the Court through appropriate motion in pursuance of orders in E.A.No.331 of 1976. Unfortunately, however, the respondents had not moved the said Court but have moved the present suit for recovery of possession. I am, therefore, unable to accede to the contentions of the learned counsel for the respondents that the suit has to be held to be maintainable as it is only for possession and not for any declaration of excess execution. The reliance by the learned counsel for the respondents in SMT. USHA GHOSH’s case (1 supra) above appears to be well founded on the first blush. However, the distinguishing features in that case and the present case would lead to the conclusion that the said decision would not assist the learned counsel for the respondents. It may be noted that the execution in the said case was not by the executing Court but by the Executive Magistrate, who had taken assistance of the police contrary to the provisions of CPC. The Division Bench also observed in para 29 with regard to requirement under Section 47 CPC that all questions relating to execution, discharge or satisfaction would be determined by the executing Court and not by a separate suit and distinguished the case on their hands by noticing that the execution in that case was not made by the executing Court but by the Executive Magistrate. The Division Bench also found that the executing Court in that case was powerless in granting the relief. Thus, though the decisions of the Supreme Court, referred to above, were noticed, on facts, the Division Bench was of the opinion that the rigor under Section 47 would not apply. 12. Learned counsel for the appellant has circulated judgment of a Division Bench of this Court in AMBATI RAGHAVALU v. MOVVA VENKAMMA[4] mainly for the proposition and maxim that actus curiae meminem gravabit i.e. an act of the Court should not prejudice a party. I am unable to see how the said decision would apply to the facts of this case, as the executing Court granted relief to the plaintiff in part in his application E.A.No.331 of 1976 dated 07.08.1980 under Section 47 CPC. After the said partial relief the executing Court under its further order dated 09.12.1980, extracted above, also gave option to the appellant to move an appropriate motion for the relief prayed for. It is, therefore, not as if that any act of Court has prejudiced the plaintiff but on account of the wrong remedy resorted to by the appellant, I am constrained to non-suit him. 13. As already mentioned, the respondents themselves approached the executing Court by appropriate application under Section 47 CPC and in spite of obtaining declaration that the delivery of possession was null and void and in spite of further obtaining the option from the executing Court to make appropriate application by motion, they have abandoned the process of the executing Court and filed a separate suit, the maintainability of which we are now concerned in the second appeal. I am, therefore, unable to uphold the decree granted by the lower appellate Court and the substantial question of law at ground No.2 deserves to be answered in favour of the appellant. The second appeal, therefore, succeeds and is accordingly allowed. This will, however, not preclude the respondents from moving the executing Court as per its order dated 09.12.1980 for appropriate relief, if permissible, in accordance with law. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J November 30, 2010 DSK [1] AIR 1993 CALCUTTA 128 [2] AIR 1956 SC 359 [3] AIR 1967 SC 1344 [4] 1962 (1) An.W.R. 139