HON’BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION Nos. 3642 and 3643 of 2010 COMMON ORDER: These two revisions are inter-related and they are disposed of through a common order. The parties are common to both the revisions. The respondent is the owner of Flat No. 102 bearing D. No. 9-19-20, Mahanty Mansion, C.B.M. Compound, Visakhapatnam. The petitioner took the same on lease. The respondent filed O.S. No. 3032 of 2006 in the Court of the I Additional Junior Civil Judge, Visakhapatnam for eviction. He has also claimed damages for the use of premises. The trial Court decreed the suit through judgment dated 10.6.2009. Eviction was ordered, but no decree was passed for damages. Petitioner filed A.S. No. 222 of 2009 in the Court of I Additional District Judge, Visakhapatnam against the judgment in the said suit. He also filed I.A. No. 860 of 2009 under Order 41 Rule 5(2) of C.P.C. with a prayer to suspend the judgment and decree in the said suit. The application was opposed by the respondent. The lower appellate Court passed an order dated 25.2.2010 staying the operation of the decree subject to the condition that the petitioner shall deposit rent at Rs.3,000/- per month with annual revision to the extent of 10%. On a memo filed by the respondent, the lower appellate Court modified the order dated 25.2.2010 on 23.4.2010 directing that the arrears of rent shall be calculated from the date of judgment and the revision shall be effective from the date of filing of the suit. C.R.P. No. 3643 of 2010 is filed against the said order. The respondent filed E.P. No. 114 of 2010 in the Court of the I Additional Senior Civil Judge for execution of the decree. He stated that no order of stay is pending with the appellate Court. Taking that into account, the Executing Court issued warrant of delivery of possession. After taking police aid and an order for breaking open the lock, the respondent got possession of the premises on 8.7.2010. Alleging that the respondent has misled the Executing Court and obtained the said order for eviction, the petitioner filed E.A. No. 271 of 2010 under Section 144 read with Section 151 of C.P.C. for restitution of the premises. The application was opposed by the respondent. The Executing Court, dismissed the E.A. through order dated 20.7.2010. C.R.P. No. 3642 of 2010 is filed against the said order Heard the learned counsel for the petitioner and the learned counsel for the respondent. C.R.P. No. 3643 of 2010 arises against the order passed by the lower appellate Court dated 25.2.2010. It is a matter of record that the trial Court passed the decree of eviction of the petitioner, but refused the relief of recovery of damages. In fact, the respondent filed an independent appeal, being A.S. No. 233 of 2009 before the lower appellate Court feeling aggrieved by the denial of damages. In I.A. No. 860 of 2009, a detailed order was passed granting stay, but imposing the condition that the petitioner shall pay a sum of Rs.3,000/- per month towards rent, to be revised at 10% every year. The respondent filed a memo on 6.4.2010 stating that there is an accidental clerical omission in the order as well as in the decree as to the date of payment of rent. Acting on that memo, the lower appellate Court passed an order dated 23.4.2010 directing that the rent shall be paid from the date of judgment and the revision of rent shall be worked out from the date of filing of the suit. These two conditions are totally outside the scope of the power of the lower appellate Court. Even if it were to be treated that they were made in exercise of power under Section 152 of C.P.C., substantial modification of that order ought not to have been made on the basis of a memo and without hearing the parties. Further, the direction to the petitioner to pay the rents from the date of judgment and revision from the date of filing of the suit runs contrary to the very purport of the judgment in the suit. As a matter of fact, this Court called for a report from the learned Presiding Officer and a report has since been submitted. There cannot be any justification for effecting such material modification of the order on the basis of a memo. Hence, C.R.P. No. 3643 of 2010 is allowed and the order dated 25.2.2010, as modified on 23.4.2010 is set aside. Coming to the execution proceedings, this Court feels that the respondent has totally misled the Court when he stated that no order of stay is pending. In column No. 5 of the execution petition, he furnished the number of appeal filed against the judgment and decree. However, he maintained silence as to the number of I.A. or as to the nature of the order passed therein. It needs to be noted that the order of conditional stay was passed on 25.2.2010 and it was modified on 23.4.2010. The E.P. was filed six days thereafter. The explanation offered by the respondent that since the order of stay stood vacated by operation of default clause on account of non- payment of rent by the petitioner cannot be accepted. Whatever may have been the justification for the Executing Court in issuing the warrant of delivery of possession, it ought to have bestowed its attention to the question as to whether it was proper on the part of the respondent to state that there was no order of stay when the record is otherwise. Instead of correcting the anomaly that has crept into the proceedings, it has chosen to embark upon the interpretation of the order of stay and arrived at a conclusion that the stay ceased to be operative on account of the default committed by the petitioner. That was totally outside the scope of its power. The explanation offered by the learned Presiding Officer is perused. While the petitioner and his counsel in the Executing Court have misled the Executing Court, required amount of care was not taken when restitution proceedings were initiated. Hence, C.R.P. No.3642 of 2010 is allowed and the Executing Court is directed to put the petitioner herein into possession of the petition schedule premises within one week from the date of receipt of a copy of this order. Such possession shall, however, be subject to the result of the appeal. The lower appellate Court is directed to dispose of the appeal, A.S. No. 222 of 2009 filed against the judgment in O.S. No. 3032 of 2006, within a period of two months from the date of receipt of a copy of this order. The petitioner shall be under obligation to clear the arrears of rent, if any, at Rs.3,000/- per month from the date of judgment, within a period of four weeks from the date of receipt of a copy of this order. The Civil Revision Petitions are accordingly allowed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY,J DATE: 25th October, 2010 Note: Furnish c.c. in one week. B/o pnb