whether the decree in O.S.No.2720 of 2004 has been stayed by this Court in the second appeal as pleaded by the respondents. If no such stay is in force, the executing Court shall execute the decree as expeditiously as possible.
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY
Civil Revision Petition No.1632 of 2012
G.Narayana and others
^Counsel for the Petitioner: Sri Venkat Raghu Ramulu
!Counsel for the respondents: ---
This civil revision petition arises out of order, dated 28.02.2012, in
E.P.No.45 of 2011 in O.S.No.2720 of 2004, on the file of the learned X
Additional Junior Civil Judge, City Civil court, Hyderabad.
I have heard Sri Venkat Raghu Ramulu, learned counsel for the petitioner, and
perused the record.
Even though notice was served on respondent No.2, he has not entered appearance.
Respondent Nos.2 and 3 have entered appearance through an advocate. However, at
the hearing, their counsel is not present.
The petitioner filed the above mentioned suit for a decree to direct the
respondents not to make any attempt to remove the common wall existing in
between the properties of the petitioner and respondents and to restrain them
from putting any ventilators or windows towards her property with a further
direction to them to remove the windows and ventilators erected illegally, by
way of mandatory injunction. The said suit was decreed by the learned X
Additional Junior Civil Judge, City Civil court, Hyderabad on 19.02.2009.
A.S.No.112 of 2009 filed by the respondents against the said judgment and decree
was dismissed by the learned XIV Additional Chief Judge, (FTC), City Civil
Court, Hyderabad on 20.08.2010. The petitioner, thereafter, filed the above
mentioned EP for execution of the decree for removing the ventilators and
windows projected towards her house as shown in the red marked portion of the
plan filed in the suit. Respondent No.2 filed a counter affidavit, wherein it
is inter alia averred that the prayer in the execution petition is vague,
improper and incorrect and that in the guise of removing the ventilators and
windows of the respondents/judgment debtors, the petitioner wants to demolish
the compound wall existing in between the houses of the parties. It is further
averred that against the judgment in A.S.No.112 of 2009, the respondents filed
S.A.No.1518 of 2010 in this Court which is stated to be pending. The executing
Court, as noted above, by its order, dated 28.02.2012, dismissed the said EP.
A perusal of the order under revision would show that the EP was dismissed on
the reasoning that the executing Court cannot look into the plan filed in the
suit and that as the petitioner failed to show the number of windows and
ventilators projected over her property and how many of them are to be removed,
the decree cannot be executed. It is further observed that the decree granted
by the lower Court and the relief sought for by the petitioner are inconsistent
and contrary (sic "mutually contradictory").
The decree in the suit is as follows:
"1. That the suit of the plaintiff be and the same is hereby decreed restraining
the defendants or anybody acting through them from removing the common wall
existing in between the properties of the plaintiff and defendants;
2. That the defendants are hereby directed to remove the ventilators or
windows, if any, projected towards the house of the plaintiff by way of
Mandatory Injunction and
3. That there shall be no order as to costs of the suit."
The above re-produced decree would show in unequivocal terms that the lower
Court has granted mandatory injunction for removal of the ventilators and
windows, if any, projected towards the petitioner's house. A perusal of the
Appendix of evidence contained in the judgment in the said suit would show that
the petitioner filed Ex.A2, original plan. In execution petition, the
petitioner has referred to the said plan and identified the red marked portion
in the said plan as filed in the suit. In the face of these facts, it is
difficult to comprehend as to what is the inconsistency between the EP and the
decree that has been found by the executing Court. Significantly, in his
counter affidavit, respondent No.2 has failed to deny existence of the windows
and ventilators allegedly projected towards the petitioner's house. In the
absence of any dispute relating to their existence, I am unable to appreciate
the approach of the executing Court in dismissing the EP in a casual and light
hearted manner. Equally I find no basis for the reasoning of the executing
Court that in an execution petition it cannot look into the plan filed in the
suit. When there is no dispute with regard to the correctness of the plan and
the suit is decreed which necessarily implies that the Court which decreed the
suit has accepted the correctness of the plan, there can be no legal impediment
for the executing Court to rely upon the said plan filed along with the plaint.
In the counter affidavit of respondent No.2, there is no whisper about the
correctness or otherwise of the suit plan.
On a careful consideration of the facts, I am of the opinion that the executing
Court has committed a serious jurisdictional error in dismissing the EP.
E.P.No.45 of 2011 is, therefore, allowed subject, however, to the verification
by the executing Court whether the decree in O.S.No.2720 of 2004 has been stayed
by this Court in the second appeal as pleaded by the respondents. If no such
stay is in force, the executing Court shall execute the decree as expeditiously
Subject to the above directions, the civil revision petition is allowed.
As a sequel to disposal of the civil revision petition, C.R.P.M.P.No.2161 of
2012 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J
13th September, 2012