HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 28-4-2010 C.R.P. No.819 of 2010 Between: Potnuru Venkata Girj Patnaik. …Petitioner. And: Dadi Adinarayana and others. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.819 of 2010 ORDER: This Revision has been preferred filed by the petitioner- claimant questioning the order dated 11-2-2010 passed by the learned Principal Senior Civil Judge, Anakapalle in unnumbered E.A. of 2010 in E.P.No.24 of 2004 in O.S.No.133 of 1984. 2. Petitioner herein is the claim petitioner in unnumbered E.A. of 2010 in E.P.No.24 of 2004 in O.S.No.133 of 1984. 3. The said unnumbered E.A. filed on 9-10-2009 was dismissed in limini by the Principal Senior Civil Judge, Anakapalli under the impugned order dated 11-2-2010. 4. The claim of the petitioner in the said E.A. is that he obtained the E.P. schedule property under a registered agreement of sale – cum –G.P.A. dated 23.3.2009 executed by the J.Dr. No.5 in his favour. Based on the said agreement, the petitioner claimed that he is in possession of the E.P. schedule property and as such he has independent rights to resist the execution of decree and therefore, filed the present application before the executing Court under Section 47 R/w Order 21, Rule 97 and Section 151 C.P.C. The said application was dismissed by the executing Court, which is challenged in this revision petition. 5. Learned counsel for the Decree-Holder-respondent filed C.R.P.M.P.No.2344 of 2010 seeking vacation of the interim stay granted by this Court on 26-2-2010. 6. Heard both the learned counsel with regard to C.R.P. itself at this stage and since the question required to be adjudicated arises in the C.R.P. itself, the main C.R.P. is disposed of by this order. 7. Learned counsel for the petitioner submitted that the impugned order of executing Court is summary disposal and it has not noticed that application under order 21 Rule 97 C.P.C. is required to be adjudicated like a suit. The learned counsel also says that he has independent right, title and interest under the registered agreement of sale-cum-G.P.A. and the same has been completely ignored by the executing Court and as such, the impugned order requires to be interfered with. 8. Learned counsel for the Decree Holder on the contrary says that the judgment-Debtor No.5 who is the vendor of the petitioner had earlier approached this Court in C.R.P.No.5107 of 2009 and batch which was disposed of by this Court by judgment dated 27-11-2009. In the said order, it is specifically recorded that the Judgment Debtor No.5, who is the vendor of the petitioner has herself requested time to vacate the plaint schedule properties and handover the vacant possession till 1.2.2010. Based on the said undertaking of the said J.Dr.No.5, this Court granted time accordingly subject to the said J.Dr.No.5 filing appropriate application before the executing Court. 9. Learned counsel submitted that such an affidavit was supposed to have been filed before this Court on 21.1.2010 (Copy is produced at 19 of the material papers). But the learned counsel for the Decree Holder states that in fact no such affidavit was filed but copy of which is available in the material papers of the lower Court record is produced. 10. Learned counsel for the Decree Holder therefore states that the petitioner who claims under J.Dr.No.5 cannot file a separate application before the executing Court and try to obstruct the delivery of possession. 11. From the averments of the petitioner’s affidavit, it is clear that the petitioner is claiming rights in E.P. Schedule property on the basis of agreement of sale dated 23-3-2009 executed by J.Dr.No.5 in his favour. However, the record reveals that the decree of the Court below was executed on behalf of all the J.Drs. The executing Court has executed a registered sale deed for E.P. Schedule property in favour of the respondents- Decree Holders on 24-6-2002. Thus from that date, all the title which the J.Drs. had, in the property were transferred to the Decree Holders and therefore, I am unable to appreciate as to what title could pass from the J.Dr.No.5 to the petitioner herein, after the said sale deed dated 24-6-2002. 12. Therefore, it is clear that J.Dr.No.5 herself did not have any title on the date of the said agreement of sale-cum- G.P.A. dated 23-3-2009. The petitioner therefore, cannot contend that he has any right, title or interest so as to obstruct the delivery of possession. Secondly, the application under Section 47 R/w Order 21, Rule–97 and Section 151 C.P.C. is clearly misconceived in terms of Order 21 Rule 102 C.P.C., as the petitioner is claiming only through Judgment Debtor No.5. Since the said Judgment Debtor is bound by the decree and has already offered to give undertaking as recorded by this Court in the earlier C.R.Ps. referred to above, neither the J.Dr. No.5 nor the petitioner, who claims under her, can set up any independent claim to the E.P. Schedule property. The executing Court therefore, was fully justified in dismissing the said E.A. filed by the petitioner. 13. I am therefore, unable to see any merits in the claim of the petitioner nor any equity in his favour. The Revision Petition is therefore, clearly frivolous and is liable to be dismissed. The findings of E.A. in question and this C.R.P. is intended to defeat execution of decree and frustrating orders of this Court in C.R.P.No.5107 of 2009 and batch dated 27-11-2009. 14. Accordingly, this C.R.P. is dismissed with costs quantified at Rs.10,000/- (Rupees ten thousand only). _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 28-4-2010 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.819 of 2010 Dated 28-4-2010