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2025 DIGILAW 606 (AP)

Gajula Ramaiah v. Uppari Pedda Lakshmanna

2025-04-16

V.R.K.KRUPA SAGAR

body2025
ORDER : V.R.K.KRUPA SAGAR, J. The decree holder filed this civil revision petition under Section 115 of C.P.C. assailing the order dated 01.05.2009 of the learned Principal Junior Civil Judge, Adoni in E.P.No.122 of 1996 in O.S.No.159 of 1987. 2. Heard arguments of Sri B.Seetharam, the learned counsel representing Sri Y.Srinivasa Murthy, the learned counsel for the revision petitioner and Sri A.V.Sivaiah, the learned counsel for respondent Nos.3 to 6. 3. To appreciate the contentions raised on both sides, it is required to notice the following legal events and facts: Two parcels of agricultural land in Ballekal Village, Adoni of Kurnool District in Survey No.140 originally belonged to Sri U.Pedda Lakshmanna. On 19.05.1987 through a registered sale deed he sold the property to Sri Talari Thimmaiah. The vendor and vendee together filed O.S.No.159 of 1987 as against Sri Gajula Ramaiah. The prayer in the said suit was for declaration of title and for recovery of possession. While so, Sri Gajula Ramaiah stating that under an agreement for sale dated 22.03.1977 the original owner Sri U.Pedda Lakshmanna agreed to sell the property to him and put him in possession of the property and received sale consideration. Stating that Sri U.Pedda Lakshmanna and Sri Talari Thimmaiah have been disturbing his possession he filed O.S.No.149 of 1987 against both. The prayer in the said suit was for a permanent injunction. Both the suits were before the learned Principal District Munsif, Adoni. A consolidated trial took place. The learned trial Court by a common judgment dated 27.07.1992 dismissed the suit for permanent injunction in O.S.No.149 of 1987. The learned trial Court decreed the suit for declaration of title and recovery of possession in O.S.No.159 of 1987. The decree holders in O.S.No.159 of 1987 got the decree executed and obtained the delivery of possession of immovable property through process of Court by dispossessing Sri G.Ramaiah. Sri G.Ramaiah aggrieved of the judgments of the trial Court filed two appeals before the learned first appellate Court. Questioning the dismissal of his suit for injunction in O.S.No.149 of 1987 he preferred A.S.No.36 of 1992. Questioning the judgment of the trial Court about declaration of title and recovery of possession in O.S.No.159 of 1987, he preferred A.S.No.37 of 1992. Both these appeals were before the learned Subordinate Judge, Adoni. Questioning the dismissal of his suit for injunction in O.S.No.149 of 1987 he preferred A.S.No.36 of 1992. Questioning the judgment of the trial Court about declaration of title and recovery of possession in O.S.No.159 of 1987, he preferred A.S.No.37 of 1992. Both these appeals were before the learned Subordinate Judge, Adoni. By a common judgment dated 03.10.1996 the learned first appellate Court dismissed A.S.No.36 of 1992 and thereby confirmed the trial Court judgment of refusing to grant permanent injunction in favour of Sri G.Ramaiah. That judgment became final. However, the learned first appellate Court allowed A.S.No.37 of 1992 preferred by Sri G.Ramaiah and set aside the judgment of the trial Court in O.S.No.159 of 1987 and dismissed O.S.No.159 of 1987. At paragraph No.46 of its judgment the learned first appellate Court stated that Sri G.Ramaiah was entitled to seek restitution of suit property. Thus, Sri G.Ramaiah by virtue of the judgment of the learned first appellate Court was entitled to obtain possession of immovable property through process of Court from Sri Talari Thimmaiah and Sri U.Pedda Lakshmanna. Sri Talari Thimmaiah who lost his cause before the learned first appellate Court in A.S.No.37 of 1992 preferred S.A.No.661 of 1996 showing Sri G.Ramaiah as the respondent. On 23.06.1997 a learned Judge of this Court disposed of the second appeal. For benefit, the entire judgment is extracted below: “It is represented by the learned counsel for the respondent that delivery was effected on 7.12.1996 and report was filed on 10.12.1996. However, the petitioner's counsel denies the same and contends that it is only a paper delivery. This question cannot be decided by this Court at this stage. However, if the petitioner has any objections for recording delivery, the lower court will consider the said objections after due enquiry and dispose of the said objections. Meanwhile status quo as on today shall continue. With the above observations, the Second Appeal is disposed of accordingly.” In the above-mentioned background of legal events, Sri G.Ramaiah who was successful before the learned first appellate Court who was granted restitution of subject matter immovable property intended to obtain possession of the property and filed E.P.No.122 of 1996 in O.S.No.159 of 1987 before the learned Principal Junior Civil Judge, Adoni. After due contest and hearing, the learned Execution Court dismissed the petition. Paragraph Nos.6, 7 and 8 of the said order read as mentioned below: “6. After due contest and hearing, the learned Execution Court dismissed the petition. Paragraph Nos.6, 7 and 8 of the said order read as mentioned below: “6. In view of the orders in S.A.No.661/1996, this Court is of the opinion that the second appeal filed by the judgment debtors is allowed by the Hon'ble High Court of A.P. by setting aside the decree and judgment in appeal A.S.No.37/92 passed by the Hon'ble Subordinate Judge's Court, Adoni. The decree holder filed this E.P. basing on the decree passed by the Hon'ble Subordinate Judge, Adoni, in A.S.No.37/92. 7. Since the decree and judgment of A.S.No.37/92 is set aside by the Hon'ble High Court of A.P. in S.A.No.661/96. Hence, this E.P. is not maintainable. 8. In the result, the execution petition is dismissed with costs.” 4. Questioning the above Sri G.Ramaiah filed this revision. 5. Learned counsel for the revision petitioner argued that the learned Execution Court failed to appreciate the facts on record and erroneously dismissed the execution petition. That the revision petitioner is legally entitled to hold possession of the property since restitution as ordered by the learned first appellate Court is in force and therefore prays this Court to set aside the impugned order and allow the execution petition. 6. A few more aspects are required to be noticed here. Sri G.Ramaiah/the revision petitioner herein had earlier filed S.A.M.P.No.17710 of 2007 in S.A.No.661 of 1996 as against the appellant in the second appeal Sri Talari Thimmaiah under Order 47 Rule 1 C.P.C. praying this Court to review its judgment in S.A.No.661 of 1996 dated 23.06.1997. A learned Judge of this Court by order dated 16.04.2008 dismissed the review on the ground that Sri Talari Thimmaiah died and a review application against a dead person was not maintainable. Thus, the judgment of this Court in S.A.No.661 of 1996 was not revised and that became final. 7. Based on the above legal events, the learned counsel for respondent Nos.3 to 6 submits that since Sri Talari Thimmaiah died and since the judgment of this Court in S.A.No.661 of 1996 became final, Sri G.Ramaiah is not entitled for any relief and the Execution Court rightly dismissed the execution petition and prayed for dismissal of the revision. 8. The point that falls for consideration in this revision is: “ Whether the impugned order suffers from illegality or material irregularity requiring interference in this revision? 8. The point that falls for consideration in this revision is: “ Whether the impugned order suffers from illegality or material irregularity requiring interference in this revision? POINT: 9. Since Talari Thimmaiah died, E.P.No.122 of 1996 in O.S.No.159 of 1987 was filed by impleading his legal representatives as respondent Nos.3 to 6 and that is very much clear from the impugned order of the Execution Court. Therefore, death of Sri Talari Thimmaiah has no consequence as far as maintainability of E.P.No.122 of 1996 in O.S.No.159 of 1987 is concerned since the estate of the deceased has been represented by his legal representatives. 10. Sri Talari Thimmaiah having won O.S.No.159 of 1987 before the trial Court got his prayer for recovery of possession executed through execution proceedings and obtained possession of the disputed immovable property. By the time the judgment in O.S.No.159 of 1987 was challenged before the appellate Court and by the time the appeal was disposed of Sri Talari Thimmaiah obtained possession of the property. It was in that context the appellate Court in A.S.No.37 of 1992 preferred as against O.S.No.159 of 1987 while allowing the appeal of Sri G.Ramaiah and while dismissing O.S.No.149 of 1987 ordered for restitution of property in favour of Sri G.Ramaiah. Therefore, Sri G.Ramaiah was entitled to obtain possession of the immovable property. Whether that was in any way subjected to change in S.A.No.661 of 1996 is the only thing for consideration in this revision. The judgment of this Court in S.A.No.661 of 1996 is already extracted in the earlier paragraphs. The appellant therein is Sri Talari Thimmaiah. Referring to that this Court had recorded in the above second appeal that the objections about recording of delivery could be raised before the Court below and the Court below had to enquire about that and dispose of the said objections. This Court in S.A.No.661 of 1996 did not set aside judgment in A.S.No.37 of 1992. Thus, the judgment of the first appellate Court in A.S.No.37 of 1992 stood preserved. As noticed earlier and as stated by both sides the judgment dated 23.06.1997 in S.A.No.661 of 1996 attained its finality. Since this Court directed the Execution Court to consider the aspects concerning delivery of possession it is the duty of the Execution Court in E.P.No.122 of 1996 in O.S.No.159 of 1987 to hear both sides and order delivery as required under law. Since this Court directed the Execution Court to consider the aspects concerning delivery of possession it is the duty of the Execution Court in E.P.No.122 of 1996 in O.S.No.159 of 1987 to hear both sides and order delivery as required under law. The opinion of the Execution Court in the impugned order that A.S.No.37 of 1992 was set aside by this Court in S.A.No.661 of 1996 is against the record and thus, the impugned order suffers from material irregularity. Therefore, the impugned order is set aside. E.P.No.122 of 1996 in O.S.No.159 of 1987 is restored to its file. Both parties are directed to appear before the Execution Court and the Execution Court shall hear both sides and implement the restitution order passed by the learned first appellate Court in A.S.No.37 of 1992. The point is answered accordingly in favour of the revision petitioner. 11. In the result, this Civil Revision Petition is allowed. The order dated 01.05.2009 of the learned Principal Junior Civil Judge, Adoni in E.P.No.122 of 1996 in O.S.No.159 of 1987 is set aside. E.P.No.122 of 1996 in O.S.No.159 of 1987 is restored to its file. Both parties are directed to appear before the Execution Court on 19.06.2025 and the Execution Court shall hear both sides and implement the restitution order passed by the learned first appellate Court in A.S.No.37 of 1992 in accordance with law. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.