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2025 DIGILAW 468 (TS)

Bandi Shashirekha v. Koudangani Rajeshwar Rao

2025-04-29

TIRUMALA DEVI EADA

body2025
ORDER : TIRUMALA DEVI EADA, J. This Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order dated 31.07.2024 in E.P.No.808 of 2022 by the Senior Civil Judge, Jayashankar Bhupalapally District (hereinafter referred to as “the trial Court”) 2. The revision petitioner herein is the J.Dr before the trial Court. For convenience and clarity, the parties herein are referred to as they were arrayed before the trial Court. 3. The case of the J.Drs before the trial Court is that the Decree Holder (D.Hr) in O.S.No.809 of 2010 was successful in obtaining a decree for declaration of title and permanent injunction over the suit schedule property against the revision petitioners herein. The J.DRs have not preferred any appeal against the judgment and decree but still they have been interfering with the possession of the D.Hr and thus, the D.Hr has filed E.P.No.808 of 2022 for execution of decree and thus, vide orders dated 31.07.2024 the trial Court has allowed the E.P. filed under Order 21 Rule 32 of the Code of Civil Procedure (CPC), directing the J.Drs to give an undertaking to honour the decree in O.S.No.809 of 2010 within a period of two weeks from the date of order, failing which the warrant would be issued for their civil imprisonment. Thus, aggrieved by the said orders, the present revision is filed by the J.DRs. 4. The contention of the J.DRs is that they are the rightful owners of the suit schedule property and that their father Bandi Mallaiah was the 3rd defendant in suit O.S.No.809 of 2010 but no summons were served on him and thus, he was set ex-parte and that the plaintiff has obtained judgment against them and further has filed E.P.No.808 of 2022 and has been harassing them with his highhandedness and that he has also obtained police aid orders for implementation of decree and finally, he was successful in obtaining the impugned orders seeking their arrest, thus, it is their contention that they have no knowledge about the proceedings in the suit and that they could not contest the suit and that the plaintiff on the strength of the ex parte judgment passed against them, is using his highhandedness and harassing them, therefore, they prayed to set aside the impugned orders, dated 31.07.2024. 5. 5. The respondent/D.Hr had filed counter contending that the J.Drs are very well aware about the proceedings and that they are not obliging the decree passed by the trial Court, thus, he was constrained to file the police aid petition which was allowed and that, in spite of the said orders the J.Drs have not been obliging the Court orders and have been interfering with his possession and thereby, he was constrained to file E.P.No.808 of 2022 by which the impugned order was passed and the contention of the J.Drs that they were not served with notices is false and that Bandi Mallaiah, who was the 3 rd defendant in the suit was served with summons but still he did not chose to contest the matter and thereafter, after obtaining the decree and after filing the E.P. also, notices were served on the J.Drs who are the revision petitioners herein, inspite of service of notice they failed to contest the same and thus, the said orders were passed on 31.07.2024. It is further submitted by the D.Hr that prior to the impugned orders, the petitioners have filed E.A.No.15 of 2024 to set aside the order dated 23.02.2021 in E.P.No.808 of 2022 by which they were set ex parte and thus, they are allowed to contest the E.P.No.808 of 2022 and as such, the consequential order passed in E.P.No.808 of 2022 on 31.07.2024 has no existence and therefore, he submitted that CRP itself is infructuous and hence, therefore, prayed to dismiss the same. 6. Heard the submissions of Sri Kaatrapati Satyanarayana, learned counsel for the petitioners and Sri G.Rama Chandra Reddy, learned counsel for respondent No.1. 7. The learned petitioners counsel has submitted that J.Dr.No.3 in the impugned EP by name Bandi Mallaiah is the husband of petitioner No.1 and father of petitioner Nos.2 and 3 herein and they are the legal heirs of J.DRs.No.3 who died on 06.06.2020 and that they are simply arrayed as parties in the E.P. as J.Drs 8 to 10 but no notices were served on them. It is their contention that their father who is the defendant No.3 in O.S.No.809 of 2010 has purchased the suit schedule property from its previous owner Mohd.Anwar and that they are the original owners of the suit schedule property and that they are also not denying the sale deed executed by the original landlord in favour of respondent No.1 vide document No.256 of 1994 which is adjacent to the land of the revision petitioners but their contention is that the said land of the plaintiff has already fallen in land acquisition proceedings and that he has no land at all and that he is claiming their land. It is their contention that they were not allowed to participate in the suit before the trial Court and after the decree is passed, they have not been given any opportunity to contest the E.P. and that the decree holder with all his highhandedness has obtained the police aid orders and also sought for the arrest of the J.Dr, which is not proper. He further argued that unless the orders passed on 31.07.2024 are set aside, they cannot contest the E.P. and putforth their case. He therefore, prayed to allow the CRP. 8. The learned respondent counsel, on the other hand, has submitted that the summons were very much served on defendant No.3/Bandi Mallaiah in the suit but that he has not chosen to contest the proceedings, even after obtaining the decree in O.S.No.809 of 2010, the decree holder is being disturbed by the revision petitioners herein who interfered with his possession and for execution of the decree he has filed E.P.No.808 of 2022 and also a police aid petition, which was allowed, inspite of which the J.Drs continued to interfere with his possession and thereafter, he filed E.P.No.808 of 2022 for arrest of J.Dr which was allowed on 31.07.2024 seeking the J.Drs to give an undertaking within a period of two weeks for implementation of the decree, failing which they would be arrested. He further argued that the petitioners have sought for setting aside the ex parte orders vide E.A.No.15 of 2024 which was allowed by the trial Court and that now the J.Drs can contest the E.P. to end it in a logical conclusion. He further argued that the petitioners have sought for setting aside the ex parte orders vide E.A.No.15 of 2024 which was allowed by the trial Court and that now the J.Drs can contest the E.P. to end it in a logical conclusion. Once the ex parte orders are set aside the orders passed in E.P.No.808 of 2022 on 31.07.2024 also do not exist and thereby, the CRP itself becomes infructuous and thus, has prayed to dismiss the CRP. 9. Based on the above contentions, this Court frames the following points for consideration: 1) Whether the order of the trial Court dated 31.07.2024 passed in E.P.No.808 of 2022 is sustainable in law and under the facts? 2) To what relief? 10. POINT NO.1: a) A perusal of the record reveals that in O.S.No.809 of 2010 one Bandi Mallaiah is the defendant No.3. He was initially arrayed as J.Dr in EP No.808 of 2022 and that on his death, the revision petitioners herein were brought on record as the LRs of Bandi Mallaiah vide E.A.No.117 of 2020 which was allowed on 06.01.2021 and as a result of which, the revision petitioners herein were brought on record as J.Drs.No.8 to 10. b) A perusal of the impugned order shows that notices were served on the J.Dr Nos.8 to 10 who are the revision petitioners herein but they did not chose to contest the E.P. It is further borne out by record that the E.A.No.15 of 2024 filed by the revision petitioners herein before the trial Court to set aside the ex parte orders was allowed by the trial Court. Thus, the revision petitioners can contest the E.P, as a result of the said orders. However, they did not chose to proceed with the E.P but are pressing this CRP to set aside the orders dated 31.07.2024. c) It has been a long drawn battle since 2010 and they reside in the same village and still they represent that they are not aware of the proceedings. It is not out of place to mention that the D.Hr is not able to enjoy the fruits of the decree dated 21.06.2018. d) To put an end to the litigation, the J.Drs can contest the E.P. and putforth their evidence so as to enable the trial Court for adjudication of the matter at the earliest. It is not out of place to mention that the D.Hr is not able to enjoy the fruits of the decree dated 21.06.2018. d) To put an end to the litigation, the J.Drs can contest the E.P. and putforth their evidence so as to enable the trial Court for adjudication of the matter at the earliest. e) The petitioners are aggrieved by the orders granting police aid in favour of the D.Hr and also orders dated 13.07.2024. f) The powers of this Court under Section 115 of the CPC are limited to the extent of looking into the existence of legal infirmity, if any, in the impugned orders. g) Section 115 of the CPC is extracted hereunder for the sake of reference: 115. Revision. —(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.—In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding. h) If at all the trial Court has exercised jurisdiction not vested in it by law or if it has failed to exercise jurisdiction or it has acted in the exercise of jurisdiction illegally, only then the High Court shall interfere with the trial Court proceedings. In the present case, it cannot be said that the trial Court has exercised jurisdiction which is not vested in it or has also not acted illegally or with any material irregularity. i) Thus, the order does not call for any interference under Section 115 of CPC. However, in view of the orders passed in E.A.No.15 of 2024, the revision petitioners herein can contest the E.P. Point No.1 is answered accordingly. 11. POINT NO.2: In view of the finding arrived at Point No.1, the Civil Revision Petition is dismissed upholding the order dated 31.07.2024 passed by the Senior Civil Judge, Jayashankar Bhupalapally District. There shall be no order as to costs. Miscellaneous applications, pending if any, shall stand closed.