Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 146 (AP)

Nakshatrapum Venkateswarlu v. Bathula Ankamma

2012-02-08

C.V.NAGARJUNA REDDY

body2012
JUDGMENT The petitioner, who is the decree holder, filed E.P.No.32 of 2001(in the certified copy of the order in the revision petition, the year of EP is shown as 1991, which is an obvious mistake for 2001) seeking execution of the decree by removing certain huts on the suit schedule property and handing over vacant possession thereof to him. This petition was dismissed by the lower Court by order, dated 07.03.2002. Feeling aggrieved thereby, the petitioner filed the present civil revision petition. Even though notice was served on respondent No.1, who is the judgment debtor, she has not entered appearance. At the hearing, there is no representation for her. I have heard Sri M.S.Ramachandra Rao, learned counsel for the petitioner, and perused the record. The suit filed by the petitioner for specific performance of an agreement of sale was decreed as far back as 16.04.1987. A.S.No.48 of 1995 filed by respondent No.1 was dismissed on 14.06.1996. The decree has, thus, attained finality. The petitioner has earlier filed E.P.No.16 of 1997 for execution of the decree. As respondent No.1 failed to register the sale deed, the Court itself has executed and registered the sale deed, dated 01.05.2000, and the said EP was accordingly closed on 07.06.2000. The petitioner thereafter filed E.P.No.32 of 2001 for the reliefs as noted above. The lower Court has dismissed the said petition mainly on the ground that the petitioner has failed to seek prayer of delivery of possession in the suit and that no decree to that effect was passed. The lower Court, however, held that the petitioner has already got the decree executed by filing E.P.No.16 of 1997 and that his application filed vide I.A.No.1185 of 1989 pending A.S.No.58 of 1987 for a prayer to remove the construction was dismissed by the lower appellate Court which order has become final. At the hearing, the learned counsel for the petitioner submitted that the lower Court has committed a serious illegality in dismissing the execution petition mainly on the ground that neither a prayer for possession was made nor a decree to that effect was passed and that therefore the prayer sought in the execution petition cannot be granted. At the hearing, the learned counsel for the petitioner submitted that the lower Court has committed a serious illegality in dismissing the execution petition mainly on the ground that neither a prayer for possession was made nor a decree to that effect was passed and that therefore the prayer sought in the execution petition cannot be granted. The learned counsel placed heavy reliance on the judgment of the Supreme Court in Babu Lal v. M/s.Hazari lal Kishori Lal and others AIR 1982 SC 818 and the judgment of a learned Single Judge of this Court in V.Narasimha Chary v. P.Radha Bai and others 1999 (5) ALT 499 . I have carefully considered the submissions of the learned counsel with reference to the judgments cited by him. In Babu Lal (1 supra), the question which has arisen in this case was dealt with by the Supreme Court. After referring to the case law, the Supreme Court held that a mere relief for specific performance of contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property and that in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter without specially providing for delivery of possession, may give complete relief to the decree holder. It was further held that in order to satisfy the decree against him completely, he is bound not only to execute the sale deed but also to put the property in possession of the decree holder and that this is in consonance with Section 55 of the Transfer Property Act, 1882, which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. This Court in V.Narasimha Chary (2 supra), following the ratio laid down by the Supreme Court in the above noted judgment, held that though the relief of possession is not claimed in the suit and was not granted in the decree, the executing Court can grant the relief of possession to the decree holder in execution proceedings also. In view of this settled legal position, the lower Court has committed a serious error in dismissing the execution petition. In view of this settled legal position, the lower Court has committed a serious error in dismissing the execution petition. Indeed, a perusal of the order of the Court below would show that it has not properly apprised itself with the actual relief claimed by the petitioner in the execution petition. It has only taken note of the first part of the relief claimed in Column-12 of the EP and omitted to note the later part of the relief, which relates to handing over of vacant possession. The lower Court also misdirected itself in thinking that dismissal of I.A.No.1185 of 1989 in A.S.No.58 of 1987 would bar the petitioner from filing the EP after dismissal of the said appeal. From the above undisputed facts, it is evident that the IA was filed by the petitioner during the pendency of the appeal filed by respondent No.1 against the judgment and decree passed in favour of the petitioner for specific performance. An order dismissing the said IA pending appeal would not certainly disentitle the petitioner from filing an application seeking execution of the judgment and decree after it has attained finality with the dismissal of the appeal. For the above-mentioned reasons, the order under revision is set aside and E.P.No.32 of 2001 is allowed. The Court below shall take appropriate steps for delivery of possession to the petitioner, if respondent No.1 or her legal heirs are still in possession of the property. The civil revision petition is accordingly allowed.