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Display PDF

ap high court judgment

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advocate william carey
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APHC010605442023

IN THE HIGH COURT OF ANDHRA PRADESH ::


AMARAVATI
(Special Original Jurisdiction) [ 3206
]

FRIDAY ,THE SIXTEENTH DAY OF FEBRUARY


TWO THOUSAND AND TWENTY FOUR
PRESENT

THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

CIVIL REVISION PETITION NO: 3208 OF 2023

Between:
1. Kattamanchi Jayakumar,, W/o K.Munikrishnaiah, Aged 53 years, R/o
Bandarlapalli Village. Rangampet Post, Chandragiri Mandal, Tirupati
District.
...PETITIONER(S)
AND
1. Dommalapati Parvathamma, (died)
2. D NaguIu naidu, S/o Chengalrama Naidu, Aged 83 years.
3. D Prakash, S/o D.NaguIu Naidu, Aged 55 years.
4. D Ravi, S/o D.NaguIu Naidu, Aged 52 years. All the Respondents are
Residents of Bandarlapalli Village, Rangampet Post, Chandragiri
Mandal, Tirupati District.

...RESPONDENTS

Petition under Article 227 of the Constitution of India,praying that in


the circumstances stated in the grounds filed herein,the High Court may be
pleased topetitioner begs to present this Memorandum of Civil Revision
Petition against the order dated 12.10.2023 passed in E.R No. 109 of 2015
in OS No. 1706 of 2005 on the file of the Principal Junior Civil Judge - cum -
J.F.C MAGISTRATE, Tirupati,

IA NO: 1 OF 2023

Petition under Section 151 CPC praying that in the circumstances


stated in the affidavit filed in support of the petition, the High Court may be
pleased pleased to stay of all further proceedings including delivery o f EP
scheduled property infavour of the respondents herein pursuant to the order
dated 12.10.2023 passed in EP No. 109 of 2015 in OS No. 1706 of 2005 on
the file of the Principal Junior Civil Judge - cum - J.F.C.MAGISTRATE,
Tirupati, pending disposal of the above Civil Revision Petition and pass

Counsel for the Petitioner(s):SRI. BALAJI MEDAMALLI

Counsel for the Respondents:

The Court made the following:


1. The predecessor of the respondents 2 to 4 herein had filed

O.S.No.1706 of 2005 in the Court of the Learned Principal Junior Civil

Judge-Cum- J.F.C. Magistrate, Tirupati, for declaration of title and delivery

of possession of the schedule property and the same was decreed on

27.02.2015. Thereafter, the predecessor of the respondents 2 to 4 moved

E.P.No.109 of 2015 in O.S.No.1706 of 2005. During the pendency of the

execution petition, the predecessor of the respondents 2 to 4 had passed

away and the respondents 2 to 4 had been impleaded as L.R.’s of the

deceased predecessor.

2. The Execution Petition filed by the respondents was resisted by the

petitioner herein on the ground that the decree was for delivery of

possession of a vacant site whereas there was a brick kiln in the land and

as such there can be no delivery of vacant possession until and unless a

mandatory injunction had already been obtained for removal of the brick kiln

before delivery of the vacant land.

3. The objection of the petitioner was rejected by the Executing Court by

an order dated 12.10.2023 wherein the Executing Court issued a delivery

warrant for delivery of the E.P. schedule property.

4. Aggrieved by the said order, the petitioner has approached this Court

by way of the present Civil Revision Petition.


5. Heard Smt. K. Vijayeswari, learned counsel appearing for Sri Balaji

Medamalli, learned counsel for the petitioner and Sri Subba Rao Korrapati,

learned counsel for the respondents.

6. A perusal of the impugned order would show that the Executing Court

after noting the aforesaid objection of the petitioner had relied upon a

Judgment of this Court in the case of Kagita Venkata Sanyasi Raju (Died)

By Lrs. Vs. Bolla Avinash1. In this Judgment, a Learned Single Judge of

this Court had taken the view that removal of the existing structures on the

suit schedule property need not be carried out before delivery of possession

is done in favor of the decree holder. The Learned Single Judge also held

that absence of request for mandatory injunction, in such cases, would not

render the decree unenforceable and that the declaration of the Civil Court

regarding the title of the decree holder and the order for recovery of

possession would be sufficient to make the decree executable.

7. I do not find any reason to deviate from the said principle laid down

by the Learned Single Judge and accordingly, I do not find any reason to

interfere with the order of the Executing Court. The Civil Revision Petition is

dismissed. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

________________________
R. RAGHUNANDAN RAO, J.
MJA/BSM

1
AIR 2023 (NOC) 608 (AP)

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