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2023 DIGILAW 81 (AP)

G Krishnaveni v. Sankarapu Gangadhar Prasad

2023-01-06

B.S.BHANUMATHI

body2023
ORDER : This revision is filed under Article 227 of the Constitution of India against the orders dated 09.04.2018 passed in EPSR No.2861 of 2017 in LAC No.01 of 2013 in O.S.No.225 of 2010 on the file of the Court of Junior Civil Judge, Jammalamadugu, seeking intervention of this Court to direct the execution Court to register the said execution petition and take it on file. 2. The suit in O.S.No.225 of 2010 was filed on the file of the Court of Junior Civil Judge, Jammalamadugu for permanent injunction against the defendant and her men etc., from interfering with the peaceful possession and enjoyment of the plaint schedule property. 3. Thereafter, the plaintiff and defendant entered into compromise before the Mandal Legal Services Committee of Jammalamadugu on 16.02.2013 and as such an award was passed as follows: “Both parties are called present and their respective learned advocates present. Both parties filed a compromise memo by mentioning the terms of compromise. The terms of compromise are as follows: The plaintiff agreeing compromise memo that is not claiming any rights in respect of suit schedule property either in the suit site sheds or electrical connection fixed in the survey no.430/1B and that the defendant agreed that she is accepting the final report filed in C.F.R.No.320/12 on the file of the JFCM Court, Jammalamadugu. In view of the compromise and submission of the both parties and at the instance of the Lok-Adalath members, the compromise is recorded and the case is disposed of as per the terms of compromise. Accordingly the award is passed and plaintiff is entitled for refund of the court fee amount. Schedule: The site along with sheds situated in Kadapa district, Jammalamadugu sub-district at Jammalamadugu in S.No.430/1B in an extent of Ac.0.15 cents is bounded by East The remaining extent of the executants West Forest land North Rasta South Land of Nelanuthala people.” 4. For the execution of the same, the defendant initially filed E.P.No.62 of 2013, but the same was dismissed on 27.11.2017 as not pressed. The defendant again filed the execution petition vide EPSR No.2861 of 2017 as per Order 21, Rule 35 CPC to remove the respondent/plaintiff from the schedule property and hand over the possession of the same to the petitioner/defendant, as per the award in LAC No.01 of 2013. The defendant again filed the execution petition vide EPSR No.2861 of 2017 as per Order 21, Rule 35 CPC to remove the respondent/plaintiff from the schedule property and hand over the possession of the same to the petitioner/defendant, as per the award in LAC No.01 of 2013. The property described in the E.P. schedule is as follows: Schedule: The site along with sheds situated in Kadapa District Jammalamadugu Sub District Municipal area (limits) survey No.430/1B Ac.0-15 cents is bounded by : East D. Hr land West Forest land continuation and at present site of (people houses) North Rasta South Land of Nelanuthala people and at present road. 5. The petitioner/defendant filed an affidavit along with the execution petition, stating that as per the award, forest land is on the western side of the property, but presently since the public constructed houses on the west of the EP schedule property, the boundary is noted as ‘forest land continuation and at present site and houses’; and similarly, since presently the municipality laid CC road on the south, the boundary in EP schedule is noted as ‘land of Nelanuthala people, at present municipal road’. It is further stated in the affidavit that one or two people raised two tin sheet sheds and corridors and placed bolders, apart from keeping hay stocks in the EP schedule property. Thus, the defendant wanted execution of the award by handing over the possession of the EP schedule property to the defendant. 6. The execution Court returned the petition on 22.12.2017 with the first objection “the boundaries shown in the award and petition are not tallied each other. It should be clarified.” The objection was answered on 30.12.2017 stating that the old and new boundaries are shown in the petition. 7. Again the execution petition was returned on 02.01.2018 with the objections “1) there are many mistakes. Neat copy of the affidavit and execution petition should be filed. 2) previous objection not complied properly.” Again the execution petition was resubmitted on 09.01.2018 with a representation that neat copy of the petition was filed, but no answer is again given for the second objection that the previous objection was not complied properly. 8. Neat copy of the affidavit and execution petition should be filed. 2) previous objection not complied properly.” Again the execution petition was resubmitted on 09.01.2018 with a representation that neat copy of the petition was filed, but no answer is again given for the second objection that the previous objection was not complied properly. 8. Again on 19.01.2018, the execution court returned the EP with the objection “How this EP is maintainable when the petitioner/defendant is not having a decree of permanent injunction in the suit.” The execution petition was represented on 30.01.2018 stating that 1) suit in O.S.No.225 of 2010 was filed by the plaintiff against the petitioner/defendant; 2) the said suit was settled before Lokadalat in LAC No.01 of 2013 and the plaintiff admitted that the suit schedule property is the property of the defendant and got dismissed the suit. The plaintiff filed suit seeking injunction. Record is clear. Award copy is available in E.P. (execution petition) in EP No.62 of 2013. The present execution petition was filed with clear boundaries of the property given in the schedule since the boundaries shown in the schedule in E.P.No.62 of 2013 were changed. E.P. is enforceable. Therefore, pray to examine my earlier E.P.No.62 of 2013 and number.” 9. Finally on 09.04.2018, the execution court returned the execution petition as follows: “The petitioner is directed to proceed according to the proceedings of the Civil Rules of Practice. Hence returned.” 10. Having aggrieved by the said order, this revision petition is filed stating that the execution court mechanically returned the petition without application of mind and that the Lok Adalat award is enforceable under law as the same is deemed to be the decree of Civil Court. 11. Heard Ms V.Divya, learned counsel representing Sri Shaik Mohammed Ismail, learned counsel for the revision petitioner. Inspite of service of notice on the respondent/plaintiff (it is mistakenly shown in the cause title as defendant), no appearance has been made for respondent. 12. She submitted that since there are changes in the boundaries of the property due to constructions made, it necessitated to give the currently existing boundaries. Inspite of service of notice on the respondent/plaintiff (it is mistakenly shown in the cause title as defendant), no appearance has been made for respondent. 12. She submitted that since there are changes in the boundaries of the property due to constructions made, it necessitated to give the currently existing boundaries. She further stated that if at all the property as described in the schedule given in E.P. is not tallying with the award, the identity of the property can be examined in the enquiry after the petition is registered and the other side agitates on appearance, but Execution Court cannot reject to number E.P. and relied on the decision of the High Court of Madras in P.Sivakumar Vs Ponnusamy and anther, CRP No.2799 of 2010 wherein it was held at paras 7 and 8 as follows: “7. Therefore, in the light of the aforesaid provisions, the Executing Court ought to have treated the order of the Lok Adalat as a decree passed by the Civil Court and the same has to be executed in terms of the decree passed by the Civil Court. For execution of a decree, all it requires for the executing court is to verify whether the plaint schedule property tallies with the description of property, which is the subject matter of the award passed by the Lok Adalat. But without doing so, the court below returned the Execution Petition on the ground that the decree passed by the Lok Adalat do not contain the description of the property at all which is contrary to Section 22E of the Legal Services Authorities Act. It is not open to the Executing Court to return the Execution Petition only on the ground that the award passed by the Lok Adalat do not contain the description of the properties. Even otherwise, when once the Execution Petition is numbered and notice is ordered to the other side, if there is any defect or discrepancy in the description of the property mentioned in the Execution Petition, than the one for which settlement was made before the Lok Adalat, the other side would agitate it before the Executing Court by rebutting the description of the property made in the Execution Petition. Normally, the order or award passed by the Lok Adalat cannot be appealed against and it would become final. Normally, the order or award passed by the Lok Adalat cannot be appealed against and it would become final. Therefore, by returning the execution petition, the very object of settling the dispute between the parties, before the Lok Adalat, has been thwarted by the executing Court. Merely because the award passed by the Lok Adalat do not contain the description of the property, it will not disentitle the revision petitioner to file the Execution Petition to execute the award passed by the Lok Adalat which can be treated as a decree passed by the Civil Court. Therefore, the court below ought not to have returned the Execution Petition for amendment or modification or rectification of the award passed by the Lok Adalat, instead of numbering the Execution Petition. 8. In the result, the Civil Revision Petition is allowed. However, there shall be no order as to costs. The Court below is directed to entertain the Execution Petition filed by the petitioner, number it and proceed further in accordance with law”. 13. First of all, the execution Court raised objection about the change in the boundaries from those mentioned in the award and those mentioned in the execution petition. For the same, the reply by the decree holder is that the constructions made necessitated the change in the description of the boundaries. If at all, there are any changes, the decree holder can mention the boundary as it was in the past and indicate the present condition of the boundary, and the same was done and neat copy was also filed. As such, insofar as the said objection is concerned, the decree holder has given appropriate answer. It is always the burden of the decree holder to get the property duly identified, in case, if there is any dispute during the course of execution. For the purpose of registering the execution petition, it may be sufficient to adopt the said procedure by the decree holder. The execution Court may go deep into the examination of the boundaries, including whether they are genuine, during enquiry. 14. The other main objection raised by the execution Court is about the maintainability of the petition when the decree holder has no decree for permanent injunction. The execution Court may go deep into the examination of the boundaries, including whether they are genuine, during enquiry. 14. The other main objection raised by the execution Court is about the maintainability of the petition when the decree holder has no decree for permanent injunction. In so far as E.P. for recovery of possession under Order 21, Rule 35 CPC is concerned, there is no need to have a decree for permanent injunction as is pointed out by the execution Court in its objection dated 19.01.2018. The decree holder must have a decree for recovery of possession. The award/decree is only to the effect that the plaintiff is not claiming rights in the suit schedule property and that the defendant is accepting the final report filed in C.F.R.No.320 of 2012 on the file of the Judicial First Class Magistrate Court, Jammalamadugu. Recovery of property under such award is sought by the defendant/D.Hr. Since the report in C.F.R.No.320 of 2012 is not before this Court, it could not be examined. 15. Of course, the answer given to the objection is not appropriate. However, the objection itself is not sustainable. 16. Finally, the execution Court returned the petition on 09.04.2018 directing the decree holder to proceed according to the Civil Rules of Practice. This objection has no clarity as to what provision is to be followed and in what manner it is to be followed. 17. Therefore, for all the above reasons, the order impugned in the revision is liable to be set aside giving liberty to the revision petitioner to resubmit the petition within ten (10) days of receipt of a copy of this order and on such resubmission, it is open for the execution Court to examine whether the petition is proper in the light of the observations made in this order and register; if in order, as per law. 18. Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs. Miscellaneous Petitions, if any pending, in this revision, shall stand closed.