IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2345 of 2008 BETWEEN Ponukupati Ramalakshmi. ... PETITIONER AND Ghana Ratna Rao (died) and two others. ...RESPONDENTS Counsel for the Petitioner : MR. Y.N. LOHITA Counsel for the Respondents: --NONE APPEARED-- The Court made the following: ORDER: Petitioner, who is the decree holder in O.S.No.208 of 2001, filed execution petition being EP.No.390 of 2005, which was dismissed under the impugned order dated 03.04.2008. Hence, this revision. 2. Petitioner filed the aforesaid suit for recovery of Rs.82,609. 50 ps. and also for creation of first charge on the plaint schedule property. The said suit was decreed on 30.09.2005 granting a decree in favour of the petitioner. By then the first defendant (first respondent herein) having died, the second defendant/second respondent herein came on record as his legal representative. The decree directed that the second defendant shall be liable to pay the decretal amount to the plaintiff from out of the assets of the first defendant, in the hands of second defendant. Based on the said decree, the petitioner filed the present execution petition seeking to proceed against the EP schedule property on the ground that the said property is in possession of second defendant/second judgment debtor on account of the second defendant succeeding to the estate of the deceased first defendant. In the said EP, the second respondent filed a counter contesting that whatever property the first defendant had was relinquished by him in favour of the second defendant under a registered relinquishment deed – Ex.R1 dated 31.12.2001. It was, therefore, contended by the second respondent that neither he nor the EP schedule property can be proceeded against, as the second respondent has not succeeded to the assets of the first respondent. Accepting the said contention, the executing Court has dismissed the EP. 3. The second respondent though served long back, nobody appears on his behalf; the first respondent had already died pending suit and the third respondent herein is endorsed as not necessary party to this revision. Heard the learned counsel for the petitioner and this revision is being disposed of. 4. A reliance by the second respondent on Ex.R3 Will of his grandfather shows that the grandfather had a house property over an extent of 112.40 sq. yards out of which he had bequeathed 56.20 sq. yards in favour of first respondent (since deceased). The said will came into effect after the death of the grandfather of the second respondent and thereby his father i.e. first respondent became entitled to the said 56.20 sq. yards. It is the further case of the second respondent that the aforesaid property has been relinquished by his father in his favour under Ex.R1 – relinquishment deed dated 31.12.2001 and thereby the second respondent claims that he has not succeeded to any assets of his father and not liable for the execution. 5. Learned counsel for the petitioner has pointed out that the deceased first respondent succeeded to the property of his father i.e. property of the grandfather of second respondent. He further pointed out that if the grandfather of second respondent was owner of 112.40 sq. yards site together with a house thereon, the will and the relinquishment is clearly with respect to only half of the said property viz. 56.20 sq. yards and the other half of the property will continue to be that of the first respondent as successor in interest and after him the second respondent, as the further successor. Learned counsel, therefore, submits that the executing Court has not kept this in mind and it proceeded on the footing that whatever was received by the first respondent under the will was relinquished by him under the relinquishment deed, referred to above, in favour of the second respondent. 6. It is not clear from the impugned order as to whether the said relinquishment deed related to the balance of the property of the grandfather after excluding 56.20 sq. yards covered by the will aforesaid or whether the said relinquishment deed related to the bequeathed property acquired by the first respondent under the aforesaid will. Further, it is also not considered and discussed by the executing Court as to whether a registered document in the nature of relinquishment deed or gift would not amount to succession of the second respondent to the property of the first respondent. The executing Court has not considered whether succession has to be only non-testamentary or the same can also be by documents intravivos between the parties. In either case, the second respondent is holding the property belonging to his grandfather, which was succeeded to by his father and as such, the contention of the second respondent that he has not received any assets of his father, which was accepted by the executing Court, does not appear to be sound and justified in the absence of investigation into the aspects, as mentioned above. 7. In the circumstances, the impugned order is set aside. The execution petition being EP.No.390 of 2005 is remitted to the trial Court for due consideration of the aspects, as mentioned above and for fresh disposal of the execution petition in accordance with law. The executing Court shall be at liberty to extend an opportunity to the petitioner/decree holder as well as the second respondent/second judgment debtor and consider the matter afresh in accordance with law on the basis of evidence produced by the parties and pass appropriate orders preferably within a period of three (3) months from the date of receipt of a copy of this order. The civil revision petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 10, 2011 DSK