HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:2946 OF 2010 Dated: 29.10.2010 Between: Bhavaraju Venkata Surya Balarama Row. ..Petitioner And 1. Bhavaraju Venkata Surya Satya Purushothamarao and others. .. Respondents. This Court made the following HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:2946 OF 2010 ORDER: This revision is directed against the order, dated 29.4.2010 passed in I.A.No.1754 of 2009 in I.A.No.657 of 2007 in I.A.No.1431 of 1981 in O.S.No.238 of 1978 by the Principal Senior Civil Judge, Kakinada. The suit in O.S.No.238 of 1978 was filed for partition of the plaint schedule properties. The plaintiff and defendants 2 and 3 are the sons, defendants 4 & 5 are the daughters and 1st defendant is the wife of late B.V. Hanumantha Rao. The said suit was decreed by passing a preliminary decree on 17.3.1981 and the final decree was passed on 29.9.2000 in I.A.No.1431 of 1981, under which the plaintiff and defendants 2 and 3 are directed to pay proportionately the value of Ac.4.00 of land in plaint “C” schedule to the 5th defendant and the legal representatives of the 4th defendant i.e., defendants 16 to 18 (i.e., half share value to 5th defendant and half share value to L.Rs of 4th defendant together). Under clause No.10 of the final decree, the 3rd defendant is directed to deliver possession of the allotted shares to the respective parties within three months from the date of the order i.e., 29.9.2000, failing which, the plaintiff, defendants 2 to 5 and the legal representatives of 4th defendant are entitled to take possession of the properties allotted to them by executing the decree. As the plaintiff and defendants 2 and 3 failed to pay the value of the land to an extent of Ac.2.00 allotted to their share as per the final decree, defendants 16 to 18 filed E.P.No.151 of 2002 for delivery of Ac.2.00 cents of land in S.No.33/1 and the same was allowed on 10.10.2002. On that, the LRs of the 2nd defendant viz., respondents 25, 27 and 28 herein filed the E.A. No.682 of 2003 seeking to set aside the delivery order dated 10.10.2002 passed in E.P.No.151 of 2002 on the ground that in fact, S.No.33/1 consisted Ac.19.38 cents and it was allotted to the share of 2nd defendant-late B.V.K.L. Narayanarao as per final decree and that defendant No:3 alone was made as a party in the Execution Proceedings instead of bringing the L.Rs of late B.V.K.L.Narayanarao on record. The said E.A. was allowed on 18.10.2004. Aggrieved by the same, the legal representatives of the 4th defendant viz., defendants 16 to 18 carried the matter in revision under CRP No.5690 of 2004. This Court disposed of the said CRP by order dated 27.1.2005. The order reads as follows: “Considering the submissions of the learned Counsel for the respondents that the land claimed by the petitioners in the schedule attached to the E.P.No.151 of 2002, cannot be delivered as it is adjacent to the main road, the Court below is hereby directed to allot an extent of Ac.2.00 out of Ac.19.68 cents in S.No.33/1. This order does not preclude the parties, more so, the respondents to pay the value of the property as per the final decree proceedings.” After disposal of the CRP, the 3rd defendant-the revision petitioner herein filed I.A.No.657 of 2007 in the above suit seeking permission to deposit Rs.4,12,000/- into Court with a direction to defendants 16 to 18 to withdraw the amount. The Court below dismissed the above application. Subsequently, the 3rd defendant filed I.A.No.1140 of 2008 in O.S.No.238 of 1978 seeking to condone the delay of 63 days in filing review petition seeking to review the order in I.A.No.657 of 2007. The said application was dismissed on 21.1.2009. Aggrieved by the same, he preferred CRP.No.3025 of 2009. This Court allowed the CRP and consequently, I.A.No.1140 of 2008 seeking to condone delay in filing the Review petition, was allowed, on condition of the payment of costs of Rs.1,000/-. As the I.A.No.1140 of 2008 was allowed, the Court below had taken up the review petition in I.A.No.1754 of 2009, which was filed seeking to review the order passed in I.A.No.657 of 2007. The Court below dismissed the review application by passing the order impugned in this revision. Hence, the 3rd defendant filed the present revision. Heard the learned Counsel and perused the material available on record. The learned Counsel for the petitioner contends that while engrossing the final decree on Non judicial stamps, the value of the land was indicated as Rs.1,36,000/- per acre as per the certificate issued by the Sub-Registrar as on 22.5.2001 and as per the final decree, the market value as on the date of final decree is to be taken for payment of the share to the legal representatives of the 4th defendant and that I.A.No.657 of 2007 was dismissed on the ground that neither the certificate issued by the Sub-Registrar nor any other title deed showing the value of the land at Rs.4,12,000/- for Ac.2.00 cents was produced, and that the petitioner filed the present I.A., along with the certificate issued by the Sub-Registrar showing the value at Rs.2,06,000/- per acre as on 31.12.2005 and the value now being offered by the petitioner is much higher than the valuation shown in the final decree and therefore, the order in I.A.No.657 of 2007 deserves to be reviewed. The material on record goes to show that the defendants 16 to 18 filed I.A.No.157 of 2007 seeking to pass a final decree on the ground that the plaintiff, defendants 2 and 3 failed to pay the amount as per orders in I.A.No.1431 of 1981, dated 29.9.2000, and they are entitled for their respective shares whereas I.A.No.657 of 2007 was filed by the 3rd defendant seeking permission to deposit Rs.4,12,000/- into Court with a direction to defendants 16 to 18 to withdraw the amount. The Court below partly allowed I.A.No.157 of 2007 and dismissed I.A.No.657 of 2007 by way of a common order. While passing the common order, the Court below observed that since defendants 16 to 18 admit delivery of possession of items ABE and item No.7 of C schedule, there is no necessity of further partition or passing of final decree for delivery of those properties and the commissioner is to be appointed for determination of the profits from the date of passing of preliminary decree till the date of delivery of items ABE and item 7 of C schedule, and appointed the advocate- Commissioner. Now, the 3rd defendant is seeking to review the order in I.A.No.657 of 2007. But the Court below dismissed the said application on the ground that the 3rd defendant did not choose to file any review or revision against the order in I.A.No.157 of 2007 and that the property was already delivered to defendants 16 to 18. It is needless to observe that once the final decree is passed, if any party fails to comply with any terms of such decree within the time stipulated, the party who has a right to derive the benefit thereunder, is entitled to get the same by way of execution proceedings. The record goes to show that the 3rd defendant did not offer the value of the property viz., Rs.1,36,000/- per acre as shown in the final decree, within three months as directed under the final decree. Therefore, defendants 16 to 18 are entitled to execute the decree and accordingly, they got possession of the schedule properties. The present suit is of the year 1978 and the final decree has been passed on 29th day of September, 2000. At this length of time, the approach of the petitioner-3rd defendant that the property in question cannot be delivered to defendants 16 to 18 and he intends to comply with the condition stipulated in the final decree, is not sustainable. Further, in view of the changed circumstances and escalation of the prices and in view of the fact that the property was already delivered, the approach of the 3rd defendant does not appear to be a bonafide one. In this view of the matter, I have no hesitation to hold that the Court below has exercised its discretion in a proper perspective and the order of the Court below does not warrant any interference by this Court and hence, the revision is liable to be dismissed. Accordingly, the CRP is dismissed. No order as to costs. ________________________ Justice A. Gopal Reddy Date: 29th October, 2010 Nn. HONOURABLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No:2946 OF 2010 29.10.2010