Birudavolu Venkata Subbamma vs Mallapu Padmavathamma on 5 August, 2003

Equivalent citations: 2003 (5) ALD 766

Bench: V Eswaraiah

Birudavolu Venkata Subbamma vs Mallapu Padmavathamma on 5/8/2003

ORDER

V. Eswaraiah, J.

1. The petitioner obtained the decree in O.S.No. 5/1986 on the file of the Principal Junior Civil Judge, Kowur,
Nellore District against the respondent herein for declaration of title and delivery of possession in respect of
the plaint schedule property. Thereafter, she filed E.P. No. 37/2000 under Order XXI, Rule 35 of Code of
Civil Procedure for execution of the decree. The Principal Junior Civil Judge, Kowur ordered the E.P. for
execution of the E.P. schedule property. The Court Amin delivered the entire portion of the E.P.schedule
property except '3' ankanams, of thatched house constructed by the respondent/judgment debtor. It is stated
that the thatched shed was constructed during the course of the suit proceedings and before filing of the
Execution Petition. .

2. The Court Amin did not remove the same in E.P. No. 37/2000 on 19-7-2000 on the ground that the
judgment debtor promised to remove the same within 15 days from that day. The Executing Court, recorded
the delivery of possession on 25-7-2000. Since the respondent did not deliver the possession of that portion,
the petitioner filed E.A.No. 24/20002 in E.P. No. 37/2000 in O.S. N6.5/1986 before the Executing Court. The
Court below dismissed the same by order dated 17-3-2003 on the ground that the said application is not
maintainable after termination of the Execution Petition. Against the said order, this Civil Revision Petition is
filed under Section 115 of CPC contending that the Executing Court is empowered to entertain the Execution
Application for effective and complete execution of the decree and the order of the Court below is illegal and
vitiated by material irregularities. It is further contended that the second Execution Petition is not a bar if on
the previous occasion there was no legal, complete and effective delivery. It is further stated that there was no
fresh cause of action and once the rights of the parties are adjudicated for effective execution of the decree,
the Executing Court had got inherent jurisdiction to issue appropriate orders.

3. Heard both the parties. The petitioner field the said E.A. No. 24/2002 before the Court below under Section
151 of CPC contending that the Court below ordered for delivery of the possession of E.P. schedule property
in E.P.No. 37/2000 filed by her and the Court Amin delivered the possession of the entire E.P. schedule
property except the land to an extent of 3 ankanams of thatched house constructed by the judgment debtor
subsequent to the suit proceedings and the Court Amin did not remove the same on 19-7-2000 due to the
mercy and that the judgment-debtor had promised to deliver the same within 15 days from that day and the
Court recorded the delivery of possession on 25-7-2000 in the said E.P. But the judgment debtor is in
unlawful possession of the same and she did not remove the thatched shed with a view to harass the petitioner
to get the some wrongful gain. The respondent has no right or authority to continue in possession, she cannot
continue in unlawful possession in any capacity.

4. The respondent filed counter before the Court below stating that the E.P. is not maintainable and she is the
landless and houseless poor person and that she has no immovable property except the petition schedule house
and that she never obstructed the Court Amin in delivery of the possession and that if there is any such
endorsement, it is nothing but the decree holder's management and that the decree holder has been harassing
the judgment debtor by filing vexatious petition and the said petition is not maintainable.

5. It is not in dispute that the suit O.S. No. 5/1986 filed by the petitioner for the declaration of the title and
recovery of the possession of the plaint schedule property against the respondent is decreed declaring that the
petitioner is the owner of Item No. 1 and 2 of the plaint schedule property and the respondent was directed to
Indian Kanoon - http://indiankanoon.org/doc/1777403/ 1
 Birudavolu Venkata Subbamma vs Mallapu Padmavathamma on 5 August, 2003

deliver the possession of Item No. 1 of the plaint schedule property to the plaintiff petitioner herein and there
was a direction to the 3rd and 4th defendants to surrender the possession of Item No. 2 of the plaint schedule
property. We are not concerned with Item No. 2 plaint schedule property as there was no dispute with regard
to delivery of the entire Item No. 2 plaint schedule property. The said judgment and the decree was also
confirmed in Appeal A.S.No. 6/1988 preferred by the respondent herein. E.P. No. 37/2000 filed by the
petitioner for delivery of the possession of the E.P. schedule property was terminated on 25-7-2000 after
recording the delivery. It appears that the petitioner also passed a receipt on 19-7-2000 acknowledging the
receipt of the possession of the E.P. schedule property. In pursuance of the report of the Court Amin filed
along with the said receipt, the E.P. had been terminated after recording the delivery. Item No. 1 of the plaint
schedule property consisting of Ac.4-00 of the land from out of Ac.6-98 cents in Sy.No. 125. E.P.No. 37/2000
relates to the said Item No. 1. The Court Amin filed a report stating that the delivery of possession of Item No.
1 was made on 19-7-2000 and, therefore, the E.P. proceedings were terminated on 25-7-2000.

6. It is the case of the petitioner that the thatched house constructed in an extent of 3 ankanams subsequent to
the suit proceedings which is a portion of the E.P. schedule property had not been delivered on 19-7-20000 by
the Court Amin due to the mercy as the judgment debtor had promised to remove the same within 15 days
from that day. Even before the expiry of 15 days, which was expired on 3-8-2000, the E.P. proceedings were
terminated on 25-7-2000 itself. It is further stated that the said portion of 3 ankanams of the thatched shed was
not delivered to the decree holder and the so called report said to have been filed by the Court Amin is only a
paper delivery but not the actual and physical delivery. The Court below held that there is no evidence on
record to establish that the thatched shed constructed by the judgment debtor had been in existence in E.P.
schedule property as on the date of delivery of the possession of the E.P. schedule property to the petitioner in
E.P. No. 37/2000 and that portion of the E.P. schedule site covered by thatched shed had not been delivered to
the Court Amin considering the request of the respondent to remove the same within 15 days. Observing the
same, the Court below dismissed the said application as not maintainable.

7. It is not the case of the respondent that she has delivered the entire schedule property in E.P. No. 37/2000.
May be there is no evidence to the effect that the respondent had promised to vacate the said portion of the
E.P. schedule property covered by thatched shed situated in an extent of 3 ankanams and that she is going to
vacate within 15 days from the said day but the fact remains, as admitted by the respondent herself before the
Court below in E.A. No. 217/2001 in E.P. No. 37/2000, that the Court Amin delivered the possession of the
property is not correct, the Court Amin gave only paper possession as she is in actual and physical possession
of the same. E.A. No. 217/2001 was file by the petitioner for disconnection of the electricity to the said
thatched shed in which the respondent filed a counter disputing the correctness of the delivery of the
possession of E.P. schedule plaint to the petitioner and further stated that she is in exclusive possession and
enjoyment of the E.P. schedule property. It was the contention of the respondent in the said E.A. that the
Assistant Divisional Engineer, Operations, A.P. TRANSCO is not a party to the suit proceedings and,
therefore, the said application filed by the petitioner to disconnect the electricity connection is not
maintainable as she continues to be in possession of the said property and the Court Amin never delivered the
suit schedule property. Also there is no dispute with regard to the fact that the land on which the thatched shed
situated in an extent of 3 ankanams is part and parcel of the E.P. schedule property. Thus, it is not denied by
the respondent that she continued to be in possession on the ground that the Court Amin delivered only the
paper possession but not the actual and physical possession.

8. The learned Counsel appearing for the respondent relying on the judgment of the Apex Court in Shew Bux
Mohata v. Bengal Breweries Limited, , stated that if once the decree has been executed earlier in full, the
second E.P, is not maintainable. Under XXI, Rule 35 of CPC, a person in possession and bound by the decree
has to be removed and there was a delivery of the receipt in the E.P. proceedings to the effect that the
respondent delivered the vacant possession and, therefore, on the report filed by the Court Amin E.P.
proceedings was terminated.

Indian Kanoon - http://indiankanoon.org/doc/1777403/ 2

 Birudavolu Venkata Subbamma vs Mallapu Padmavathamma on 5 August, 2003

9. On the other hand, the learned Counsel for the petitioner submits that the entire E.P. schedule property was
not delivered and a portion of it i.e., matched shed in an extent of 3 ankanams was continued to be in
possession of the respondent on, the ground that she had promised to vacate within 15 days and, therefore, the
possession obtained was only a symbolic possession but not the actual and physical delivery.

10. Admittedly, the Court Amin had not completely executed but decree had been partly executed on the day
of the execution i.e., on 19-7-2000. The respondent also agreed that the Court Amin did not deliver the
possession of the said portion in which the respondent is residing and the respondent is in actual and physical
possession.

11. If that be so, can it be said that the decree had earlier been executed in full. There is no agreement between
the parties herein permitting the respondent to continue in possession and, therefore, it cannot be said that the
new cause of action arose in continuing the possession by the respondent. The report of the Court Amin was
incorrect and therefore, it cannot be said that the execution was completed. In the aforesaid case before the
Apex Court, there was an agreement between the parties and the judgment debtor was permitted to continue
for a period of six weeks-and after-expiry of six weeks alone, the order was made recording the full
satisfaction of the execution of the proceedings and, therefore, it cannot be said that the decree had been partly
executed on the later date. Here, it is not the case where the petitioner has permitted the respondent to
continue in possession. Had there been any agreement between the parties permitting the respondent to
continue in possession, it would have been different one, but admittedly, the possession by the Court Amin is
only a paper delivery of possession and not the actual and physical possession. The facts-in the aforesaid case
before the Apex Court have no relevance and in that case the permission had initially granted for six weeks
which had expired and long after the expiry, the Court recorded the execution in fall and, therefore, that was
binding on the decree holder.

12. While considering the similar contentions whether the delivery was only paper delivery or actual
possession and while considering several other cases including the aforesaid case of the Apex Court, the
Madras High Court in K. Ramalingam v. K. V.Krishna Reddy, , with regard to khas (actual) possession and
paper possession held that if the decree holder is satisfied with the alleged delivery of possession, whether the
physical or symbolic, he cannot on a subsequent date ask for the actual possession by "filing a second
execution petition; subsequent execution petition can be entertained only in cases where there was no legal,
complete and effective delivery of possession on the earlier occasion. In case of Manika yala Rao v.
Namsimhaswami, , the Apex Court held that if the fact was that the actual delivery of possession was not
obtained by the decree holder in previous execution case, there was no justification for holding that the decree
holder be deprived of his right to come before the executing Court and pray for a fresh delivery of possession
when there was no other bar to his right of executing the decree.

13. Thus, it is clear from the judgments of the Apex Court in Manikayala Rao (supra), Shew Bux Mohata v.
Bengal Breweries Ltd (supra), Rama Ganesan v. Rajah Ayyar, and K.Rama

lingam v. K.V.Krishna Reddy (supra) that whatever may be the conflict between the same decisions regarding
filing any execution petition for a second time after the decree for possession has been satisfied, one thing is
certain that if on the previous occasion there was no legal, complete or effective delivery, a second execution
petition was not a bar. As far as the present case is concerned, the judgment debtor/respondent herself
accepted the fact that there was no actual/physical delivery given to the decree holder. She has come forward
with a specific case in the said E.P. (in E.A. No. 217/2001) that the alleged handing over of the actual
possession is not true and that as a matter of act it was not so and it was only a paper delivery but she is in
actual and physical possession of the property. The only person who could object to a second execution
application (E.A.No. 24/2000) on the basis that the decree has already been satisfied, but the respondent
herself stated that there was no actual delivery of the possession but it was only paper delivery of possession
and, therefore, it cannot be said that there was a legal, complete or effective delivery of the entire property.

Indian Kanoon - http://indiankanoon.org/doc/1777403/ 3

 Birudavolu Venkata Subbamma vs Mallapu Padmavathamma on 5 August, 2003

14. In those circumstances, there is absolutely no substance in the arguments of the learned Counsel for the
respondent that the E.A. filed by the petitioner to effect the full and complete execution is not maintainable.
There is no bar either for filling second execution petition or for filing the said E.A. to effect execution in full.

15. Accordingly, the Civil Revision Petition is allowed and the said E.A. No. 24/ 2000 filed by the petitioner
stands allowed. There shall be no order as to costs.

Indian Kanoon - http://indiankanoon.org/doc/1777403/ 4