GANGAHUTCHAIAH Vs. JAYAMMA AND ORS.

JUDGEMENT

(1.) Heard Sri Vigneshwar S. Shastri, learned counsel appearing for the petitioner and Sri M B Chandra Chooda, learned counsel appearing for respondents 1 and 2. 3rd respondent is reported to be dead and petitions stand abated.

(2.) Respondents 1 and 2 in order to enjoy the fruits of the decree passed in O.S. No. 166/96 have filed the execution petition No. 59/12. During the pendency of the execution petition, Judgment debtor filed an interlocutory application under Sec. 151 CPC to examine the issue regarding the maintainability of the execution petition as per Annexure "D". The decree holder filed interlocutory application under Sec. 151 CPC seeking for direction to the jurisdictional police to extend protection to execute the delivery warrant as per Annexure "F". These two applications came to be examined by the Court below and by a common impugned order dated 18.09.2015 - Annexure "H", application filed by the decree holder came to be allowed while the application filed by the judgment debtor came to be rejected. Hence, the present Writ Petitions have been filed by the judgment debtor challenging both orders.

(3.) It is the contention of the Mr. Shastri, learned counsel appearing for the petitioner that execution petition filed under Order 21 Rule 11 of CPC is not maintainable since final decree having been drawn in FDP 11/2002. He would also submit that grievance of the parties to final decree proceedings, if any, has to be addressed by the same Court adjudicating the final decree proceedings and as such, independent or separate Execution proceedings could not have been filed and as such it was liable to be rejected. Non -consideration of this vital aspect by the trial Court according to Mr. Shastri has resulted in an erroneous order being passed by the Court below. Hence, he prays for allowing the writ petition by dismissing the execution petition.