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2012 DIGILAW 8 (AP)

Alamdar Astharian v. Sheeshmahal Enterprises Pvt. Ltd. rep. by its Director

2012-01-03

K.G.SHANKAR

body2012
Judgment : 1. The plaintiff filed O.S.2214 of 1989 on the file of the 2nd Additional Senior Civil Judge, City Civil Court, Hyderabad for eviction of the defendant who was the tenant in the premises. The suit was decreed. The defendant preferred C.C.C.A. 155 of 1998 questioning the judgment in O.S.2214 of 1989. This Court dismissed the appeal. The plaintiff thereafter attempted to execute the decree by laying E.P.51 of 2007. 2. The petitioner came into picture at that stage contending that he has been in occupation of the disputed premises and that the suit was filed by the plaintiff against a wrong person owing to collusion between the plaintiff and the defendant. The third party claimant in fact filed E.A.141 of 2007 as a claim petition. The third party claimant also filed E.A.140 of 2007 for stay of execution of the decree in O.S.2214 of 1989 until disposal of E.A.141 of 2007. 3. While things stood thus, the third party claimant filed yet another petition in E.A.151 of 2008 seeking for the stay of the execution of the decree until the disposal of O.S.2076 of 2007. (O.S.2076 of 2007 on the file of the 2nd Additional Senior Civil Judge, City Civil Court, Hyderabad is a suit filed by the third party claimant against the plaintiff for a declaration that the judgment and decree in O.S.2214 of 1989 is not binding on him.) 4. The learned counsel for the decree holder contended that while E.A.140 of 2007 in E.A.141 of 2007 is pending, the petitioner cannot seek for stay through E.A.151 of 2008 once again. 5. I may point out that the relief sought for in E.A.151 of 2008 and E.A.140 of 2007 are distinct and different. In E.A.140 of 2007, the third party claimant seeks for stay of the execution in E.P.51 of 2007 pending disposal of E.A.141 of 2007, which is the claim petition of the petitioner. In E.A.151 of 2008, the third party claimant seeks for stay of the execution of E.P.51 of 2007 pending disposal of O.S.2076 of 2007. 6. Sri. D. Jagan Mohan Reddy, learned counsel for the plaintiff contended that in view of the bar under Order 21 Rule 101 C.P.C, the very suit in O.S.2076 of 2007 is not maintainable and that consequently, the question of stay of execution of E.P.51 of 2007 pending disposal of O.S.2076 of 2007 does not arise. 7. 6. Sri. D. Jagan Mohan Reddy, learned counsel for the plaintiff contended that in view of the bar under Order 21 Rule 101 C.P.C, the very suit in O.S.2076 of 2007 is not maintainable and that consequently, the question of stay of execution of E.P.51 of 2007 pending disposal of O.S.2076 of 2007 does not arise. 7. I am afraid that I cannot go into the question of maintainability of O.S.2076 of 2007 in this petition. That aspect shall be considered by the trial Court in O.S.2076 of 2007 and not by me. 8. At the same time, it is clear that when the petitioner filed a claim petition in E.A.141 of 2007, the petitioner at best can seek for stay of the execution of the decree pending disposal of the claim petition. He cannot seek for the stay of the decree pending disposal of another suit. Consequently, the rejection of the execution Court in staying E.P.51 of 2007 through the impugned orders in E.A.151 of 2008 is justified and does not suffer from any error of law. This revision is therefore liable to be dismissed. 9. However, evidently, the petitioner-third party claimant is entitled to move the execution Court for the stay of further proceedings in E.P.51 of 2007. In fact, the petitioner has chosen to do so through E.A.140 of 2007. The petitioner therefore is at liberty to prosecute his remedy invoked by him through E.A.140 of 2007. So far as E.A.151 of 2008 is concerned, it is found to be devoid of merits. The dismissal of the same by the execution court is justified. 10. The revision is devoid of merits and is accordingly dismissed. No costs.