P. S. NARAYANA, J. ( 1 ) HEARD Mr. Kesava Rao, representing J. Venkateswar Reddy, representing the revision petitioner and mr. Vilas V. Afzulpurkar, representing the respondent. ( 2 ) AT the outset, I may state that in the prior round of litigation in Civil revision Petition No. 4136 of 1998, it was observed:"if in fact there was an execution beyond the scope of the order in the main Rent control case and or the respondent without taking delivery of the two rooms through the Court and demolished the rooms on his own, the Court is not powerless to grant appropriate orders as regards the restoration of possession or any other appropriate relief in order to ensure the restitution. " ( 3 ) THE dispute is between the landlord and the tenant in a rent control proceeding relating to the excess delivery in execution of an order of eviction. The main contention of the respondent, who filed e. A. 12 of 1998 in E. P. No. 3 of 1998 in r. C. No. 94 of 1981, on the file of the XVIII junior Civil Judge-cum-Additional Rent controller, Secunderabad, is that the order of eviction was made in relation to shed portion only and the excess delivery relates to the two rooms which are, in fact, away from the said portion. ( 4 ) THE Court below had recorded the evidence of PW1 and RW1 and also Exs. P1 to P8 and R1 and R2 and ultimately came to the conclusion that the application filed by the respondent-judgement-debtor has to be allowed, and aggrieved by the same, the decree-holder had filed the present civil revision petition. ( 5 ) ALL the factual details had been narrated in detail in the impugned order, which, in fact, need no repetition. Mr. Kesava Rao, representing the revision petitioner had narrated the series of events and had contended that the question of exercising power of restitution under section 144 CPC does not arise since none of the ingredients of Section 144 of CPC are satisfied in the present case. The learned counsel had placed reliance on the judgments reported in State Govt. of A. P. v. M/s. Manickchand Jeevraj and Co. and another, 1972 (2) ALT 23, Neelathupara Kummi seethi Koya Phangal (dead) by Legal representatives v. Montharapalla Padippua attakoya and others, 1994 Suppl. The learned counsel had placed reliance on the judgments reported in State Govt. of A. P. v. M/s. Manickchand Jeevraj and Co. and another, 1972 (2) ALT 23, Neelathupara Kummi seethi Koya Phangal (dead) by Legal representatives v. Montharapalla Padippua attakoya and others, 1994 Suppl. (3) SCC 760, Ganesh Parshad v. Adi Hindu Social serice League, 1974 (2) ALT 405, Vijaya bank, Ongole Branch Rep. by its Branch manager, Ongoie v. Thottempudi Ramaiah chowdary and others, 1992 (2) ALT 481 , gadde James and others v. Kolla Upendra babu and another, 2000 (2) ALD 115 = 2000 (3) ALT 511 and Kothapalli Suryanarayana v. Eandikatla Anjaneyulu, 1998 (6) ALD 82 . Learned Counsel also contended that since under the specific provision of Section 144 CPC, the power cannot be exercised, even inherent powers under Section 151 cpc are not available. He also had submitted that when fraud had been alleged, it is for the other side to establish the fraud and the most crucial witness, the bailiff, was not examined at all by either of the parties or at least by the Court. The learned Counsel also further contended that even otherwise inasmuch as several complicated disputed facts are involved in the matter, the remedy by way of an application is a misconceived one and at the best, the respondent may be entitled to institute a separate suit claiming appropriate reliefs. ( 6 ) MR. Vilas V. Afzulpurkar, representing respondent, had contended that this is a matter of clear fraud and the revision petitioner-decree-holder, knowing well that he cannot take delivery of the two rooms, had taken excess delivery and, in fact, a protest was made and also an endorsement was made even on the date of delivery itself. The defence of the other side that there was voluntary delivery was disbelieved by the Court below by recording reasons. It was also submitted that this aspect was not even completed and definitely it is only an afterthought. Learned Counsel had drawn my attention to the schedule in the execution petition, the delivery warrant and several other records and had pointed out how by playing fraud, eyen on record, the excess delivery was obtained by the revision petitioner-dccree-holder. He had brought to my notice the very order of eviction, which was made in the main R. C. reported in G. Krishna Rao v. Lalit Kumar Mehta, 1997 (5) ALD 378 . He had brought to my notice the very order of eviction, which was made in the main R. C. reported in G. Krishna Rao v. Lalit Kumar Mehta, 1997 (5) ALD 378 . The learned Counsel had stressed on the powers of the Court either to recall an order obtained by fraud or to make appropriate orders exercising inherent powers. The learned Counsel placed strong reliance on a judgment reported in united India Insurance Company Ltd. v. Rajendra Singh and others, AIR 1977 SC 1569 and Busching Schmitz Private Ltd. v. P. T. Menghani and another, 2000 AIR SCW 835. ( 7 ) THE Court below had framed the following points for consideration : 1. Whether the two rooms portion, which is used as office-cum-godown is the subject matter of the petition schedule premises in R. C. 94/81? 2. Whether the petitioner has voluntarily delivered the possession of two rooms ? (or) whether there was any fraud played by the respondent/decree holder in evicting the petitioner from the said two rooms ? 3. Whether the petitioner herein is entitled for the restoration of possession of the two rooms? ( 8 ) THE Court below had discussed these points at paragraphs 8 to 26 and had ultimately arrived at the conclusion that the application has to be allowed. A perusal of the oral and documentary evidence shows that PW1 and RW1 alone had been examined by the respective parties and Exs. Pl to P8 and R1 and R2 were marked. Ex. R1 is the possession receipt in E. P. 3/98 in R. C. 94/81 and Ex. R2 is the panchanama in E. P. 3/98 in R. C. 94/91. ( 9 ) THE learned Counsel for the respondent had drawn my attention to paragraph 9 of the impugned order, where it was observed :"the evidence of PWI in this regard is that the schedule portion as per R. C. 94/81 is only for the shed and not for the two rooms which is being used as office-cum-godown. The evidence of PW1 clearly supported by the document Exs. Pl and P6. Further the respondent/decree holder i. e. , RW1 has clearly admitted in the cross-examination at page 5 that the R. C. 94/81 which he sought eviction for the shed portion only. The above version is also clearly supporting the evidence of PW1. The evidence of PW1 clearly supported by the document Exs. Pl and P6. Further the respondent/decree holder i. e. , RW1 has clearly admitted in the cross-examination at page 5 that the R. C. 94/81 which he sought eviction for the shed portion only. The above version is also clearly supporting the evidence of PW1. After going through the evidence of both the parties and after going through the eviction petition and the map attached to it i. e. , documents Ex. P1 and P6 i hold that the two rooms portion which is being used by the petitioner/jdr herein as office-cum-godown is not the subject- matter of R. C. 94/81. I answer point No. 1 accordingly. " ( 10 ) IT is pertinent to note that the Court below while discussing point No. 2 at paragraph (11) had observed as follows: "even after the said endorsement the bailiff has submitted his report as follows:"in pursuance of Court order I went to given address of JDR alongwith decree holder and I shown the warrant and explained about it. Then they removed their properties from the said premises in the presence of witnesses. After that he handed over the possession to the decree holder and obtained the possession receipt from him which is enclosed herewith the panchanama and warrant. Hence duly warrant is executed . " ( 11 ) WHEN element of fraud is alleged, what actually happened at the time of delivery is not clear. It is no doubt true that there is oath against oath relating to the evidence of PW1 and RW1. It is no doubt true that the protest endorsement made by the respondent-judgment-debtor was brought to my notice. In the fitness of things, the bailiff should have been examined in a matter of" this nature. The reasons for non-examination of the bailiff are not forthcoming. ( 12 ) BE that as it may, under Section 114 of the Indian Evidence Act, there is a presumption that the official acts are done properly and definitely it is the duty of the Court to look into the aspects what really had happened on the particular day and the events are to be closely examined to arrive at a conclusion whether the element of fraud had been the aspect, in the facts and circumstances of the case, are not. Hence, apart from all the other factual details, which had been discussed by the Court below, in my considered opinion, the evidence of the concerned bailiff is very important for deciding the matter. Hence, I am not inclined to express any opinion on other aspects of the matter i. e. , other factual aspects which had been discussed in detail and the findings which are recorded by the Court below relating to those aspects. ( 13 ) IN the fitness of things, I deem it fit that the matter has to be remitted back again to the Court below to enable the parties to examine the bailiff and also to adduce further evidence if they choose to do so, so as to substantiate their respective contentions. For the foregoing reasons, the civil revision petition is allowed and the matter is remitted back to the Court below with the directions specified supra and the Court below shall dispose of the matter within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.