THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION NO.5565 OF 2007 DT.07.06.2010 Between: Sri Sree Khadi & Village Industries Development Women Welfare Society, represented by its Secretary, Guntur District. ………….Petitioner Vs. Bhagavathula Janardhana Murthy and four others. ……………..Respondents. O R D E R: By consent of both sides, civil revision petition itself is heard and being disposed of by this order. This revision is preferred by the third party objector who is aggrieved by the order of the executing court, dated 18.09.2007 whereby the decree holders’ application in E.A.No.1080 of 2005 for removal of obstruction under Order 21 Rule 97 C.P.C., was allowed. The facts in brief are that the respondent Nos.1 to 4 herein are the decree holders in O.S.No.410 of 1999 on the file of Principal Junior Civil Judge, Tenali. They filed a suit for eviction and recovery of possession against the fifth respondent herein. The said suit was decreed on 28.06.2002 and the appeal filed by the fifth respondent against the said decree, being A.S.No.67 of 2002 on the file of Principal Senior Civil Judge, Tenali, was dismissed on 02.11.2006. Thereafter the decree holders put the decree to execution in E.P.No.201 of 2002. Since there was obstruction to the execution of the decree by the petitioner herein, the decree holders filed E.A.No.1080 of 2005 under Order 21 Rule 97 C.P.C., seeking removal of the obstruction caused by the petitioner herein. The said application has since been allowed by the executing court, Tenali and the same is questioned by the petitioner in this revision petition. This court had issued notice on admission earlier and granted stay. Later, the revision petition was dismissed for default on 22.02.2008, but on application of the petitioner, the same was restored by order, dated 25.04.2008. In spite of service of notice, as there was no appearance on behalf of the respondents, revision petition was admitted and the stay continued to operate. Now, Mr.V.V.L.N.Sarma appears for respondents/decree holders and seeks vacation of the interim stay, but, however, as mentioned above, instead of proceeding with the vacate stay petition, both the learned counsel agreed and argued the civil revision petition itself. Learned counsel for the revision petitioner strenuously contended that it is the petitioner who is the tenant and she is subjected to eviction without filing any suit against her. The learned counsel states that the decree holders have collusively filed a suit against the fifth respondent and obtained a decree for eviction in O.S.No.410 of 1999 and the petitioner was unaware of the said suit and decree and came to know of the decree only when execution proceedings were initiated and when the petitioner was impleaded in E.A.No.1080 of 2005 for removal of obstruction, the petitioner has filed a counter to the said E.A., specifically stating that she has been the tenant under an oral lease and that she has already filed O.S.No.246 of 2004 on the file of Junior Civil Judge, Tenali for injunction against the decree holders as well as judgment debtors i.e., respondent Nos.1 to 4 and fifth respondent herein respectively. The executing court recorded the evidence on behalf of the decree holders, one of whom was examined as PW-1 and Ex.P-1 was marked, whereas the judgment debtors examined the Secretary as RW-1 and Exs.R-1 to R-5 are marked. The executing court on consideration of the evidence came to the conclusion that the request of the decree holders for removal of obstruction caused for execution of the decree was in favour of the decree holders and as the claim made by the petitioner herein was not substantiated and as such, allowed E.A.No.1080 of 2005 and directed delivery of possession of the property. The learned counsel for the petitioner states that she being the real tenant, is not impleaded in the suit and decree cannot be executed against her. Learned counsel placed reliance upon the order of injunction obtained by the petitioner in the suit O.S.No.246 of 2004 and contends that the said court was satisfied and therefore the injunction was granted. He further submits that before the executing court also other documents were filed, namely, Ex.R-1 being the registered letter dated 13.05.2004, Ex.R-2 being xerox copy of the demand draft, Ex.R-3 being the counter foil, dated 13.05.2004 and Exs.R-4 and R-5 are the postal receipt and acknowledgment respectively. He contends that if the petitioner was not the tenant, there was no reason for the decree holders-landlords to accept the said amount from the petitioner. The learned counsel therefore states that the court below has not appreciated the aforesaid aspect and the order deserves to be revised. The learned counsel for the respondents/decree holders on the contrary contends that RW-1 is the wife of Respondent No.5. He also submits that the order of injunction obtained by the petitioner in O.S.No.246 of 2004 was marked as Ex.P-1. It reads as follows: “In the result petition is allowed, interim injunction is granted for a period of ten months or earlier if the 5th respondent (the original lessee) is evicted in the final proceedings of the suit O.S.No.410 of 1999 on the file of the P.J.C.J., Tenali.” The learned counsel also submits that the aforesaid order itself was for a period of ten months. When the original lessee (5th respondent/judgment debtor) was not yet evicted and the petitioner not being a lessee was claiming through the judgment debtor, cannot resist the execution. He also submitted that later, the said suit O.S.No.246 of 2004 filed by the petitioner was dismissed on merits by the learned I Additional Junior Civil Judge, Tenali, under judgment and decree, dated 06.12.2007 and no appeal having been filed against the said decree by the petitioner, it has to be held that she cannot be declared as a tenant and as such, she has no right to obstruct the execution of the decree. In the light of these rival contentions, the point that arises for consideration is whether the impugned order of the executing court is sustainable in law and as to whether the petitioner can justifiably resist the execution of decree. During hearing, I have pointed out to the learned counsel for the petitioner of the order impugned is one passed under Order 21 Rule 97 C.P.C., and under Order 21, Rule 98 read with Rule 103 C.P.C., the orders passed by the executing court had a force of a decree and consequently, an appeal under Section 96 C.P.C. alone lies against the said order of the executing court. The present revision petition though filed, the interference by this court, the maintainability there of is in serious doubt. Further, both the learned counsel have argued the matter on merits and as this revision petition is pending before this court from 2007 onwards, I deem it appropriate to decide the revision on merits instead of driving the parties to one more round of litigation. The petitioner has filed the present revision petition relying substantially on the order of injunction passed in her favour in O.S.No.246 of 2004, the said order already extracted above would show that the operation of the said order was for a period of ten months or less, till the main tenant i.e., Judgment debtor-respondent No.5 herein is evicted from the premises. The fifth respondent-judgment debtor had filed A.S.No.67 of 2002 questioning the eviction decree and the same was also dismissed on 02.11.2006. Since the decree in O.S.No.410 of 1999 which is the subject matter of the present proceedings having attained finality, the decree has to be executed by the executing court. Further reliance by the petitioner on the said injunction order is not in force, since the said order was admittedly vacated and later the suit itself was dismissed. A certified copy of the judgment in O.S.No.246 of 2004 is produced before me. The said suit was filed for mere injunction against the respondents herein. On the basis of evidence let in by all the parties, the civil court came to the conclusion that the documents filed by the petitioner in the said suit do not in any manner establish or suggest that the petitioner is the tenant of respondent Nos.1 to 4. It was also found that the petitioner has failed to establish the relation between the petitioner and respondent Nos.1 to 4 as that of a landlord and tenant and the said suit was held to be vexatious and speculative. The petitioner was therefore denied the equitable relief of permanent injunction on the ground that she has come to the court with un-clean hands. The said judgment and decree having attained finality, it has to be held that the petitioner’s claim that she is the tenant of the schedule premises has to be held against her and she cannot contend contrary to the findings in her suit O.S.No.246 of 2004. Therefore, she has no right to obstruct the execution of the decree by the respondent Nos.1 to 4 against the 5th respondent-judgment debtor. The court below, under the impugned order, has reached the same conclusion by finding that the petitioner was not able to establish that she is the tenant of the respondent Nos.1 o 4 and she being the wife of PW-1-respondent No.5-judgmnt debtor, the executing court was unable to believe her claim that she has an independent right as a tenant. The execution application for removal of obstruction moved by respondent Nos. 1 to 4 was therefore rightly allowed by the executing court. I do not therefore find any error warranting interference by this court. Civil revision petition is accordingly dismissed. No costs. ___________________ VILAS V.AFZULPURKAR Dt.07.06.2010 tjs