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Tuesday, April 8, 2014

Or. 21, rule 32 C.P.C.- Execution of injunction suit - when a third party made constructions over the suit schedule property , JDr should not be send to civil prison when specifically pleaded , he has no way concerned with the constructions - Trial court wrongly allowed the E.P. - Their lordships of High court held that the Civil Revision Petition is allowed and the order under revision is set aside. It is made it clear that the petitioner shall not, in any way, interfere with the rights of the respondents 1 to 4 and it shall be open to the latter to remove the structure,which is said to have been made upon the suit schedule property.= Kulukulri Suresh Varma V.Venkata Satya Subrahmanya Mallikarjuna Surya Rao and others = 2013(April.Part ) judis.nic.in/judis_andhra/filename=9795

Or. 21, rule 32 C.P.C.- Execution of injunction suit - when a third party made constructions over the suit schedule property , JDr should not be send  to civil prison when specifically pleaded , he has no way concerned with the constructions - Trial court wrongly allowed the E.P. - Their lordships of High court held that  the Civil Revision Petition is allowed and the order under
revision is set aside. It is made it clear that the petitioner shall not, in any way, interfere with the   rights  of the respondents 1 to 4 and it shall be open to the latter to remove the structure,which is said to have been made upon the suit schedule property.=

The
respondents 1 to 4 filed E.P.No.24 of 2012, under Order XXI Rule 32 of CPC, with
a prayer to send the petitioner and the 5th respondent to civil prison on the
ground that they violated the decree for perpetual injunction. 
It was pleaded
that the petitioner brought into existence a structure over the suit schedule
property,  part of a plot of 377 square yards of site.=

The petitioner filed a counter denying the allegations. He stated that he
is not at all concerned with the so-called structure and that he did not make
it. The executing Court partly allowed the E.P. directing that the petitioner be
sent to civil prison.  =
"I submit that we never interfere with the E.P. schedule property in any manner
and we are nothing to do it. The D.Hrs filed the E.P. creating evidence to
harass us though they have knowledge that one Paradesi Naidu purchased the E.P.  
schedule property and that he is making constructions. After filing the E.P. we
made enquiries. Then only, we came to know that M. Paradesi Naidu making  
constructions."
Accordingly, the Civil Revision Petition is allowed and the order under
revision is set aside. It is made it clear that the petitioner shall not, in any
way, interfere with the   rights  of the respondents 1 to 4 and it shall be open to the latter to remove the structure,which is said to have been made upon the suit schedule property. There shall be
no order as to costs.
2013(April.Part ) judis.nic.in/judis_andhra/filename=9795

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

Civil Revision Petition No.1532 of 2013

04-04-2013

Kulukulri Suresh Varma

V.Venkata Satya Subrahmanya Mallikarjuna Surya Rao and others  

<GIST:

>HEAD NOTE:  

Counsel for petitioner : Sri Ravi Cheemalapati

Counsel for respondents 1 to 4 : Sri T.D. Phani Kumar

?CASES REFERRED :    

ORDER:
        Respondents 1 to 4 filed O.S.No.114 of 2011 in the Court of the Junior
Civil Judge, Bheemunipatnam, against the petitioner and the 5th respondent, for
the relief of perpetual injunction in respect of the suit schedule property. The
suit was decreed on 05.11.2011 and the decree is said to have become final. The
respondents 1 to 4 filed E.P.No.24 of 2012, under Order XXI Rule 32 of CPC, with
a prayer to send the petitioner and the 5th respondent to civil prison on the
ground that they violated the decree for perpetual injunction. It was pleaded
that the petitioner brought into existence a structure over the suit schedule
property,  part of a plot of 377 square yards of site.

2.      The petitioner filed a counter denying the allegations. He stated that he
is not at all concerned with the so-called structure and that he did not make
it. The executing Court partly allowed the E.P. directing that the petitioner be
sent to civil prison. The same is challenged in this civil revision petition.

3.      Sri Ravi Cheemalapati, learned counsel for the petitioner, submits that
once the petitioner stated that he did not make any structure and that he is not
concerned with it, the executing Court ought to have simply dismissed the E.P.
He contends that just on the basis of certain suggestions made in the
cross-examination, the E.P. was allowed. He further submits that even according
to the respondents 1 to 4, there are disputes with one Sri Paradesi Naidu in
relation to the suit schedule property.

4.      Sri T.D. Phani Kumar, learned counsel for the respondents 1 to 4, who
filed caveat, on the other hand, submits that on one hand, the petitioner stated
that he is not concerned with the suit schedule property or the structure made
thereon, but on the other hand, he went on doubting the very right of the
respondents 1 to 4 over the suit schedule property.

5.      It is no doubt true that the petitioner has figured as defendant No.2 in
the suit and the decree passed therein became final. If the petitioner had
violated the decree for perpetual injunction, he is certainly liable to be
punished.

6.      In his counter filed in the E.P., the petitioner stated  that he
did not involve in any illegal or unlawful acts and violate the decree, much
less caused any obstructions to the respondents
1 to 4. In the affidavit filed in lieu of chief-examination, the petitioner
repeated the same. To be precise, his statement is as under:
"I submit that we never interfere with the E.P. schedule property in any manner
and we are nothing to do it. The D.Hrs filed the E.P. creating evidence to
harass us though they have knowledge that one Paradesi Naidu purchased the E.P.  
schedule property and that he is making constructions. After filing the E.P. we
made enquiries. Then only, we came to know that M. Paradesi Naidu making  
constructions."

Once the petitioner stated as above, the Executing Court ought to have dismissed
the E.P. leaving it open to the respondents 1 to 4 to remove the structure, if
any, that is existing over the schedule property. However, by presuming that the
petitioner is behind one Mr. Paradesi Naidu in bringing into existence the
structure, the Executing Court allowed the E.P. The order passed by the
Executing Court cannot be sustained either on facts or in law and the same is
liable to be set aside.

7.      Accordingly, the Civil Revision Petition is allowed and the order under
revision is set aside. It is made it clear that the petitioner shall not, in any
way, interfere with the   rights  of the
respondents 1 to 4 and it shall be open to the latter to remove the structure,
which is said to have been made upon the suit schedule property. There shall be
no order as to costs.

8.      The Miscellaneous Petitions filed in this civil revision petition shall
stand disposed of.
_____________________  
L. NARASIMHA REDDY, J    
4th April, 2013

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