Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 755 (AP)

Ginjupalli Sambaiah v. Yenireddy Lakshma Reddy

2022-08-12

BATTU DEVANAND

body2022
ORDER : 1. This Civil Revision Petition is filed by the petitioner challenging the order, dated 20.12.2021 in I.A. No. 310 of 2021 in A.S. No. 34 of 2021, on the file of the XIII Addl. District & Sessions Judge, Narsaraopet. 2. Heard learned counsel for the petitioner and learned counsel appearing for the Respondents and perused the material available on record. 3. The petitioner herein is the plaintiff and respondents herein are defendants in O.S. No. 369 of 2018 on the file of the Principal Senior Civil Judge, Narsaraopet and the Respondents are defendants in the suit and Respondents in 1st Appeal. 4. The petitioner herein filed a suit in O.S. No. 369 of 2018 for recovery of possession of suit schedule property from the defendants therein. The said suit was decreed by decree and judgment, dated 02.09.2021 by the Principal Senior Civil Judge, Narsaraopet with costs directing the defendants therein to deliver possession of the suit schedule property to the plaintiff within one month from the date of the decree and judgment and also made it clear that on failure, the plaintiff is entitled to enforce the decree in accordance with law. Aggrieved by the decree and judgment in O.S. No. 369 of 2018, the 1st Respondent herein filed an appeal in A.S. No. 34 of 2021 on the file of the XIII Addl. District & Sessions Judge, Narsaraopet. 5. In the said appeal in A.S. No. 34 of 2021, the 1st Respondent filed I.A. No. 310 of 2021 under Order 41, Rule 5(1) of C.P.C. to suspend the operation of the decree and judgment passed in O.S. No. 369 of 2018, dated 02.09.2021, on the file of the Principal Senior Civil Judge, Narsaraopet, till disposal of the appeal. The said application is allowed by the Appellate Court, grating stay of execution of the decree and judgment, dated 02.09.2021 passed in O.S. No. 369 of 2018 by the learned Principal Senior Civil Judge, Narsaraopet, on depositing of suit costs before the trial Court within a week. Aggrieved by the order, dated 20.12.2021 in I.A. No. 310 of 2021 in A.S. No. 34 of 2021 by the XIII Addl. District & Sessions Judge, Narsaraopet, the present Civil Revision Petition is filed. 6. Aggrieved by the order, dated 20.12.2021 in I.A. No. 310 of 2021 in A.S. No. 34 of 2021 by the XIII Addl. District & Sessions Judge, Narsaraopet, the present Civil Revision Petition is filed. 6. Learned counsel for the petitioner submits that the Appellate Court ought not to have allowed I.A. No. 310 of 2021 in view of the fact that the trial Court has passed the well considered judgment and decree after considering the pleadings and evidence adduced by both parties. The Appellate Court erred in observing that the O.S. No. 48 of 2010 filed by the petitioner was dismissed. In fact, the said suit was decreed and O.S. No. 234 of 2009 filed by the 1st Respondent herein is dismissed. 7. The learned counsel further submits that the lower Appellate Court miserably failed to consider that the 1st respondent failed in trial Court level and two appellate courts level for his claim for the specific performance of the agreement of sale. If the appellate court considering the observations and findings of the trial court while decreeing the suit in favour of the petitioner wherein it is clearly mentioned that the alleged agreement of sale is forged and fabricated one and the same finding has been affirmed by the First and Second Appellate Courts in the earlier round of litigations. As such, the learned counsel for the petitioner sought to set aside the order, dated 20.12.2021 in I.A. No. 310 of 2021 in A.S. No. 34 of 2021 passed by the XIII Addl. District & Sessions Judge, Narsaraopet by allowing this Civil Revision Petition. 8. The learned counsel for the 1st respondent submits that the trial court failed to consider the facts in proper perspective and the 1st respondent is having good case in the appeal and as such granting stay of execution of the decree and judgment, dated 02.09.2021 in O.S. No. 369 of 2018 on the file of the Principal Senior Civil Judge, Narsaraopet by the appellate Court is to protect the interest of the 1st respondent herein during the pendency of the appeal in A.S. No. 34 of 2021. The learned counsel for the 1st respondent contends that the intervention of this Court is not required in the Civil Revision Petition. 9. The learned counsel for the 1st respondent contends that the intervention of this Court is not required in the Civil Revision Petition. 9. Having heard the submissions of the respective counsel and upon careful perusal of the material available on record, it appears that the suit in O.S. No. 369 of 2018 was filed by the petitioner/plaintiff for recovery of possession of the suit schedule property against the respondents/defendant herein on the file of the Principal Senior Civil Judge, Narsaraopet. The said suit was decreed with costs directing the defendants to deliver possession of the suit schedule property to the plaintiff within one month from the date of the decree and on failure, the plaintiff is entitled to enforce the decree in accordance with law. Against the said decree and judgment, the 1st defendant preferred an appeal in A.S. No. 34 of 2021 along with I.A. No. 310 of 2021, on the file of the XIII Addl. District & Sessions Judge, Narsaraopet. After hearing both sides, the appellate Court allowed the I.A. No. 310 of 2021 filed by the 1st respondent herein granting stay of execution of the decree and judgment, dated 02.09.2021 in O.S. No. 369 of 2018 passed by the learned Principal Senior Civil Judge, Narsaraopet on depositing the suit costs. While allowing the said I.A. No. 310 of 2021 the 1st appellate Court observed as extracted herein-under: “It is an admitted fact that the respondent filed O.S. No. 48 of 2010 for perpetual injunction and that the appellant is filed O.S. No. 234 of 2009 for specific performance of agreement of sale, after dismissal of both suits, two appeals were filed and also the said appeals were disposed, so also the criminal case. The respondent is taking hectic steps in execution of decree as per the argument of the learned counsel for the petitioner. If the orders are passed, no prejudice would be caused to the respondents.” 10. Basing son the material available on record, the said observation of the lower appellate Court is contrary to the record. The suit filed by the petitioner herein in O.S. No. 48 of 2010 was decreed in his favour and O.S. No. 234 of 2009 filed by the 1st respondent herein for specific performance of agreement of sale was dismissed. Basing son the material available on record, the said observation of the lower appellate Court is contrary to the record. The suit filed by the petitioner herein in O.S. No. 48 of 2010 was decreed in his favour and O.S. No. 234 of 2009 filed by the 1st respondent herein for specific performance of agreement of sale was dismissed. It appears, the 1st appellate Court also failed to consider the reasoning given by the trial court while deciding the issue No. 5. The trial Court categorically gave finding while deciding the issue No. 5 as extracted herein-under: “Issue No. 5: From the pleadings and evidence it is clear that the Plaintiff is the true owner of the suit schedule property by virtue of Registered Sale Deed Doc.No. 2444/2000 dt.24.07.2000. The alleged plea of execution of Agreement of Sale on 04.03.2002 taken by the first defendant, was rejected by two competent courts one in O.S. No. 234/2009 on the file of Addl. Senior Civil Judge, Narsaraopet and the other in A.S. No. 90/2012 on the file of XIII Addl. District & Sessions Judge, Narsaraopet. In the appeal filed by the first defendant herein in A.S. No. 89/2012 against the judgment and decree in O.S. No. 48/2010 on the file of Addl. Senior Civil Judge, Narsaraopet, the appellate court observed that the Plaintiff has to take steps for recovery of possession of suit schedule property in accordance with law. Therefore, the present suit is filed by the Plaintiff. As a title holder of the suit schedule property, the Plaintiff is absolutely entitled to have the possession of the suit schedule property from the unlawful occupiers. Hence, this court holds that the Plaintiff is entitled to recover the possession of suit schedule property from the Defendants as prayed for. This issue is accordingly answered in favour of Plaintiff and against the Defendants.” 11. On consideration of the entire material available on record, in our considered view, the lower appellate Court without considering the entire record in proper perspective, allowed I.A. No. 310 of 2021 in A.S. No. 34 of 2021 and accordingly, it is liable to be set aside. 12. In view of the above discussion, the present Civil Revision Petition is allowed and the order, dated 20.12.2021 in I.A. No. 310 of 2021 in A.S. No. 34 of 2021 on the file of the XIII Addl. 12. In view of the above discussion, the present Civil Revision Petition is allowed and the order, dated 20.12.2021 in I.A. No. 310 of 2021 in A.S. No. 34 of 2021 on the file of the XIII Addl. District & Sessions Judge, Narsaraopet, is hereby set aside. 13. There shall be no order as to costs. 14. As a sequel, miscellaneous petitions, if any pending, shall stand closed.