THE HON'BLE SRI JUSTICE K.G.SHANKAR CIVIL REVISION PETITION No.2795 of 2007 Date:03.11.2011 Between: Kakarapalli Sathibabu ..... Petitioner/Decree-holder. AND Bondu Rajulu .....Respondent/JDr. The Court made the following: THE HON'BLE SRI JUSTICE K.G.SHANKAR CIVIL REVISION PETITION No.2795 of 2007 ORDER: The petitioner is the Decree-holder. He seeks for setting aside the orders in E.P.No.45 of 2005 in O.S.No.45 of 1996 on the file of the Senior Civil Judge, Peddapuram. The Judgment-Debtor is the respondent. There is no representation for the Judgment-Debtor. This petition is consequently disposed of without hearing the Judgment- Debtor. It is the contention of Sri S.A. Razack, learned counsel for the Decree-holder that the Execution Court unjustly dismissed the Execution Petition and that it is a fit case where execution deserves to be ordered. 2. The revision petitioner filed as many as three suits against the respondent herein. It is the case of the revision petitioner that in all the three cases, the revision petitioner filed petition under Order 38 Rule 5 CPC and obtained orders of attachment of immovable properties before judgments. It is his further case that the attachment orders have been subsisting as on today. 3. In so far as O.S.No.45 of 1996 is concerned, the Decree-holder filed the E.P for appointment of a receiver to take possession of the schedule properties, to manage the same and to deposit the profits into Court until the amounts due to the petitioner are completely realized. 4. The Judgment-Debtor/respondent herein laid counter in the Execution Petition contending that he entered into agreements of sale with P. Raghava on 02-01-1994 and with M. Yesu on 11-05-1995 in respect of the petition schedule properties and that he delivered possession to Raghava and Yesu in respect of the petition schedule properties. Contending that the Execution Petition is not maintainable on the ground that the Judgment-Debtor is not in possession of the properties, the Judgment-Debtor sought for dismissal of the E.P. 5. The Decree-holder was examined as P.W.1. The Judgment-Debtor did not examine any one nor did he mark any document. Nevertheless, the Execution Court dismissed the E.P holding that the Decree-holder failed to show that the Judgment-Debtor is in possession of the properties. 6. It is the contention of the learned counsel for the Decree-holder that there was no sale of the properties even according to the Judgment-Debtor and that the Judgment-Debtor failed to prove possessory agreements of sale. He further urged that assuming that there was a sale or possessory agreements of sale, the same would be invalid as the properties were already attached before judgments and that the possesssory agreements of sale would be the subject to the attachment only. 7. These aspects have not been considered by the Execution Court. It is unfortunate that the Execution Court proceeded on the assumption that the counter averments should be disproved by the Decree-holder. I, therefore, deem it appropriate to remit the case to the Execution Court for fresh consideration. 8. Accordingly, the revision is allowed. The case is remitted to the Execution Court for fresh consideration. The Execution Court shall accord opportunity to the Decree-holder and the Judgment-Debtor to let in evidence and mark documents if any and shall hear arguments on both sides and then pass appropriate orders. The Execution Court, may, however, keep it in mind that the properties are alleged to be under attachment before judgments and that the attachment before the judgments has been subsisting. The Execution Court may also keep it in mind that at this stage, the Judgment-Debtor has not produced any documentary evidence in support of his claim that he entered into possessory agreements of sale with Raghava and Yesu. The Execution Court is requested to dispose of the Execution Petition, as expeditiously as possible, keeping the age of the Execution Petition in mind. No costs. _________________________ JUSTICE K.G. SHANKAR Date:03.11.2011. mrb