IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2249 of 2010 Between: E. Venkat Ramulu and others .. Petitioners AND V. Chandramma .. Respondent ORDER: The civil revision petition is directed against the order in E.P. No.54 of 2003 on the file of the Senior Civil Judge’s Court, Mahabubnagar, dated 24-01-2009, whereby the executing Court had recorded that both sides were heard and the objections filed and the statement of the Court witness were perused, on which the Court was satisfied that the property was duly identified and delivery was effected, the objections against which were untenable. Opining that the delivery of the property, which was effected, holds good, the executing Court closed the execution petition. The judgment-debtors seek to challenge the said order in this revision contending that the decree in O.S. No.23 of 1992 is a compromise decree, under which the decree-holder/respondent was allotted five rooms in ground floor and five rooms in first floor as per the sketch map annexed to the compromise decree and the Court bailiff on the contrary delivered the entire share of ten rooms in the ground floor only. The bailiff stated, when examined, that he did not identify the property and the advocate commissioner in his report stated that the property was not in accordance with the compromise decree as seen from his sketch map also. The Executive Engineer’s report was not considered and the order sought to be revised, unsupported by any reasons, is unsustainable on fact and in law and not in compliance with the directions of this Court in C.R.P. No.5206 of 2003, dated 24-04- 2008. Heard Sri T. Srikanth Reddy, learned counsel for the revision petitioners at the stage of admission and the original records of the execution petition summoned from the executing Court are also perused. The point for consideration is whether the impugned order is, ex facie, unsustainable on fact and in law. O.S. No.23 of 1992 ended in a compromise decree between the plaintiff and defendants 1 to 3 on 28-04-1992 and the respondent herein was given five rooms each in the ground and first floors of door No.2-1-8/3/3/D to an extent of 1018.1 square feet in the ground floor and 678.74 square feet in the first floor as shown in the orange colour in the sketch map annexed to the compromise decree. The 2nd defendant/decree-holder consequently filed E.P. No.54 of 2003 for appointment of a bailiff for physical partition and possession under Order XXI Rule 35 of the Code of Civil Procedure. The same was resisted by the respondents claiming that the decree-holder was already in possession of the property that fell to her share as per her choice and nothing remained to be executed in the compromise decree. The claim of the decree-holder is that she was given only 956 square feet in the ground floor, out of which 150 square feet were abandoned in road widening leaving 806 square feet in her possession and that she was not given anything in the first floor, though she was entitled to have an area of 678.74 square feet. An advocate commissioner was appointed in the execution petition to prepare a plan of house No.2-1-8/3 and in the presence of independent panchas, the commissioner executed the warrant preparing a rough sketch of the premises under a panchanama with the respondents to the execution petition and their counsel refusing to subscribe to the panchanama. The panchanama shows that the property (Padmavathi Lodge complex) was identified and its measurements were taken and a plan was prepared. Thereafter, the Executive Engineer, Roads and Buildings Department was appointed as commissioner to divide the premises into four equal shares after ascertaining the valuation of the property and to draw a sketch showing the four shares and the Executive Engineer accordingly submitted his report on 04-01- 2006 in compliance with the orders of the executing Court, dated 28-02-2005. The Executive Engineer reported that the total plinth area of the ground floor was divided into four equal shares of 782.64 square feet as marked in the plan. The respondents to the execution petition objected to the report of the Executive Engineer claiming want of notice before executing the warrant and alleging his report to be against natural justice. When the executing Court directed delivery of possession through the bailiff of the Court, the revision petitioners claimed that the direction to give possession of house No.2-1-8/3 instead of the property specified in the compromise decree, was against the compromise decree and the bailiff prepared the panchanama for the delivery of the house itself without even perusing the non- existence of any structure of such a house. The revision petitioners later claimed that the decree-holder was interfering with the property by dismantling part of the schedule property due to wrong execution of the warrant. They claimed that the proceedings were in violation of the orders of the High Court in C.R.P. No.1384 of 2008. The allegations of dismantling the wall were denied by the decree-holder. What was under consideration in C.R.P. No.1384 of 2008 was the claim of the revision petitioners about excess delivery of the property and this Court referring to the orders passed earlier in C.R.P. No.5206 of 2003, opined that an opportunity should be given to the revision petitioners herein regarding their grievance relating to excess delivery in contravention of the terms of the compromise decree. In C.R.P. No.5206 of 2003, this Court ordered that the executing Court can appoint a commissioner to deliver possession of the orange coloured portion shown in the sketch annexed to the compromise decree, as her execution petition is for delivery of possession of her share. In the light of the said orders, the executing Court allowed the revision petitioners herein to come up with their objections against the delivery of the property effected in execution and after their objections were placed on record as stated above, the bailiff was examined as a Court witness. The bailiff stated as C.W.1 that he handed over the entire premises consisting of eight shops to the decree-holder, but during cross-examination it was elicited that there are about 15 to 16 shops in the complex. The bailiff delivered the property on identification of the shops by the decree- holder, though the same was not specifically stated in the panchanama, but he denied not delivering the property in accordance with the delivery warrant. Though it is true that the delivery warrant is as though house No.2-1-8/3 were to be delivered to the decree-holder, it is, thus, evident from the evidence of C.W.1 that only eight shops were delivered in the premises. In C.R.P. No.5206 of 2003, the learned Judge has noted that the existence of the property allotted to the share of the decree- holder was not in dispute and while the judgment-debtors were claiming that the property was delivered to her, she was denying the same. Therefore, the Court can appoint a commissioner to deliver possession. That direction has become final. The opportunity given in C.R.P. No.1384 of 2008 is for the judgment- debtors to avail by proving any excess delivery of possession beyond the compromise decree. The report of the Executive Engineer or the report of the advocate commissioner or the report of the bailiff were not shown to be not representing the physical features of the property on ground and though the judgment-debtors were attempting to contend that the entire house much beyond what was compromised to be allotted to the decree-holder, was attempted to be delivered to her, there is no positive evidence before the executing Court to probablise the same, except that the panchanama and the bailiff’s report referred to the house itself instead of a portion of the same. But the evidence of C.W.1 made the physical position clear that only eight shops were delivered to her. Though the constructed area delivered was described as shops, the obvious reference seems to be to the rooms used as shops and if a total of eight rooms was delivered and the compromise decree entitles the decree-holder to have possession of ten rooms (five rooms in each floor), ex facie, no violation of the compromise decree can be presumed. The executing Court after considering all the circumstances, expressed its satisfaction in the impugned order that the property was duly identified and delivery was effected. Upholding the said delivery of the property by the bailiff, thus, does not appear to be, in any manner, opposed to the material on record and it will be preposterous to presume in the absence of any definite material that the Executive Engineer and the advocate commissioner and the bailiff would have travelled beyond the terms and conditions of the compromise decree in their reports. If any deviation in the performance of their duties were to be believed by the Court, there shall be some positive indication from some acceptable evidence placed before the Court and in the absence of such evidence, the impugned order, though brief in expression, cannot be considered to be groundless or unreasonable. The impugned order cannot, therefore, be interfered with and the civil revision petition is consequently dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 22-09-2011 Svv