THE HONOURABLE SRI JUSTICE G. CHANDRAIAH C.R.P. No.2063 of 2009 Date: 27.08.2009 Between: Barika Somalatha … Petitioner And Shaik Beebijan and another … Respondents THE HONOURABLE SRI JUSTICE G. CHANDRAIAH C.R.P. No.2063 of 2009 ORDER: This revision petition has been filed aggrieved by order dated 25.03.2009 passed in E.P. No.91 of 2001 in O.S. No.186 of 1985 by the learned Principal Junior Civil Judge, Markapur. The revision petitioner is the 2nd defendant/2nd judgment debtor and the respondents 1 and 2 are the decree holder/plaintiff and the 1st defendant/1st judgment debtor, respectively. For the sake of convenience, the parties hereinafter referred to as they were arrayed in the suit. The facts of the case in nutshell are that the plaintiff filed O.S. No.186 of 1985 before the learned District Munsif, Markapur, for declaration of her title to the site shown as M1, C, D, B, A and G in the plaint plan and for a consequential relief of perpetual injunction restraining the 1st defendant from constructing any chimney in the RCC roofing, and for a mandatory injunction for removal of the RCC roofing to an extent of 6 inches to 20 inches from the portion shown as G to Q removal of wall shown as Q to C, removal of G to M1 wall and for damages of Rs.200/- for causing damage to the cement plastering of her M1 to C wall. The learned District Munsif dismissed the said suit vide judgment dated 06.12.1994. Aggrieved by the same, the plaintiff preferred an appeal in A.S. No.4 of 1995 before the learned Senior Civil Judge, Markapur, and that was allowed in part vide judgment and decree dated 28.06.2001 declaring the title of the plaintiff to the disputed site and mandatory injunctions sought by her for removal of structures made by the defendants. Assailing the same, the 2nd defendant preferred second appeal in S.A. No.597 of 2002 before this Court and this Court eventually dismissed the second appeal confirming the judgment and decree passed in A.S. No.4 of 1995. Thereafter, to execute the decree passed in A.S. No.4 of 1995, the plaintiff filed E.P. No.91 of 2001 in O.S. No.186 of 1985 before the learned Principal Junior Civil Judge, Mrkapur and the learned Principal Junior Civil Judge vide order dated 25.03.2009 allowed the execution petition with costs directing the 2nd defendant/2nd judgment debtor to comply with the mandatory injunction granted by the first appellate Court, failing which, liberty was given to the plaintiff/decree holder to get it executed through the Court Amin either through the bailiff or Advocate Commissioner and in such an event, the 2nd defendant is not entitled to claim any compensation for the damages to the building, both in the ground floor and in the first floor, which was constructed while the matter is pending before the Courts, as admitted by her, in implementing the decree and that the plaintiff is entitled to recover the expenses from the 2nd defendant incurred in the execution of decree of mandatory injunction. Assailing the same, the present revision has been filed by the 2nd defendant. The learned counsel appearing for the revision petitioner submits that the said E.P. was filed under Order XXI Rule 11 and 32 (5) CPC to issue notice to the judgment debtors as to why mandatory injunction granted by the first appellate Court was not complied with to remove the QC roofing in an extent of 6” to 20” from points G to Q and also to remove the AC and G M1 whereas, the first appellate Court directed to remove the RCC roofing in an extent of 6” to 20” from point G to Q and also to remove the QC and G M1 walls by way of granting mandatory injunction. The Court below, while considering the execution petition, going beyond the scope of decree, directed to remove the QC roofing in an extent of 6” to 20” from points G to Q and also to remove the AC and GM1, and the Court below has no jurisdiction to go beyond the scope of the decree, as there is no decree to remove the AC and GM1 wall. It is also submitted by the learned counsel that the Court below without proper appreciation of the decree, allowed the execution petition, which requires to remand the matter to the Court below for proper appreciation or to appoint an Advocate Commissioner to identify the property covered by the decree and earmark the portion against which the decree of mandatory injunction granted. On the other hand, the learned counsel appearing for the plaintiff/1st respondent/decree holder submits that there is a clear direction in the decree passed by the first appellate Court to remove the RCC roofing in an extent of 6” to 20” from points G to Q and also to remove the QC and G M1 wall. However a typographical error occurred in the order in E.P. where in place of QC and G M1, AC and G M1 typed. It is also submitted by him that it is not fair on the part of the learned counsel to take advantage of the typographical error and to protract the matter instead of putting an end to the litigation, since the suit is for the year of 1985. The Court below after taking into consideration all the facts and circumstances of the case, allowed the execution petition and directed the revision petitioner to comply with the decree passed by the first appellate Court. Heard the learned counsel on either side and perused the material on record. From a perusal of the record, it is not in dispute that the decree was passed in favour of the plaintiff by the first appellate Court and to execute the same, the plaintiff filed the said E.P. The disputed question, as a whole, here is that whether there is any disputed wall to remove from the point AC and G M1? From a perusal of the plan annexed to the plaint categorically reveals that the points covered by the alphabets A, B, C and D wall belongs to one Mhaboob Vali, which is not at all the subject matter of the suit. The disputed question of the suit walls is from the points covered by the alphabets G to Q, Q to C, C to M1 and M1 to G. The first appellate Court had categorically directed the defendants to remove the walls shown by the alphabets from G to Q and QC and G M1. The learned counsel for the revision petitioner is uncertain about the typographical error. In view of the above, this Court is of the opinion that the Court below did not commit any error in allowing the execution petition and there was a typographical error occurred in the order in E.P. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel, the submission of the learned counsel for the revision petitioner that the Court below has gone beyond the scope of the decree is not sustainable and there is no necessity of remitting the matter to the Court below or appointing any Advocate Commissioner. Accordingly, this Court is not inclined to interfere with the order dated 25.03.2009 passed in E.P. No.91 of 2001 in O.S. No.186 of 1985 by the learned Principal Junior Civil Judge, except making note of the error occurred AC in place of QC. For the above reasons, the revision petition is liable to be dismissed and accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _________________________ JUSTICE G. CHANDRAIAH Date: .08.2009 LSK