S HASMATH BEE Vs. MD HUSSUAIN

JUDGEMENT

(1.) Unsuccessful petitioners filed this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908, against the order of dismissal of a claim petition filed under Order XXI Rule 58 (2) r/w Section 151 of the Code of Civil Procedure, 1908, passed by the III Additional Junior Civil Judge, Kadapa, passed in E.A.No.141 of 2017 in E.P.No.328 of 2015 in O.S.No.28 of 2014 on 05-03-2019.

(2.) The brief facts of the case are that the 1st respondent herein filed E.P.No.328 of 2015 under Order XXI Rule 10 of the Code of Civil Procedure, 1908, for delivery of vacant possession of the E.P. schedule property as per the judgment and decree dated 20-03- 2015 passed in O.S.No.28 of 2014 in respect of house and its vacant site bearing No.17/539 (Old Door No.17/450) RCC building situated at Ward No.17 Mittal Vandla Street, Kadapa Municipal Corporation. Whereas the petitioners filed claim petition in E.A.No.141 of 2017 in E.P.No.328 of 2015 under Order XXI Rule 58 (2) CPC seeking delivery of vacant possession of the petition schedule property by declaring them and their deceased sister Hurani Bee and their brother Tamboli Sabjan as absolute joint owners of the petition schedule property (property is the same as shown in the E.P. schedule property) along with costs of the suit. The petitioners state that they along with their elder sister Hurani, who died on 03-04-2017 and one brother Tamboli Sabjan, inherited the petition schedule property from their father Tamboli Nathad Saheb who died on 01-09-1971 and their mother Imam Bee died on 16-06-1988, as their father was the absolute owner and possessor of the petition schedule property. When their brother refused to partition the property, they filed partition suit O.S.No.157 of 2015 against their brother Tamboli Sabjan as well as the respondent/decree holder, who is none other than the husband of the 2nd petitioner, Smt. S. Kursheed, the judgment debtor. The 2nd respondent herein G. Venkata Subbaiah, is not related to them. They filed O.S.No.157 of 2015 on the file of Additional Senior Civil Judge's Court, Kadapa, for partition and separate possession in respect of petition schedule property and the same is pending for adjudication. The pleadings in the suit proceedings reveal that the 1st respondent decree holder purchased the petition schedule property under registered document No.656 of 2003 dated 03-01-2003 from the petitioners and their brother Tamboli Sabjan, in whose favour the petitioners relinquished their rights in the property by executing relinquishment deed dated 25-10-1993 vide document No.254/1993 by receiving an amount of Rs.35,000/-. It appears that they have no joint right and possession over the petition schedule property, whereas the 1st respondent filed suit O.S.No.28 of 2014 against the 2 nd respondent herein G. Venkata Subbaiah before the III Additional Junior Civil Judge's Court, Kadapa for eviction in respect of petition schedule property and the same was decreed. The 1st respondent filed E.P.No.328 of 2015 against the 2nd respondent for delivery of the suit schedule property. After enquiry, warrant for delivery of property with police aid was issued to Court Amin to deliver the suit schedule property, when the court Amin went to the property to deliver the possession to the 1st respondent-decree holder, the petitioners submitted objection letter and the same was filed before the Court. Then, the petitioners filed present petition. Based on the pleadings and the evidence on enquiry, the Executing Court dismissed the claim application E.A.No.141 of 2017 holding that the petition under Order XXI Rule 58 CPC is not maintainable as the E.P. is not filed for attachment of E.P. schedule property, but for delivery of the vacant possession of the E.P. schedule property and the petitioners have already filed suit O.S.No.157 of 2014 for partition of the petition schedule property and the same is pending. Based on the enquiry, the Executing Court, after considering the evidence of PW.1, and RW.1 coupled with Exs.P.1 to Ex.P.3 and Ex.R.1 and Ex.R.2 and the 2nd respondent herein the judgment debtor remained ex parte. The E.P.No.328 of 2015 is filed for delivery of possession of E.P. schedule property as per the judgment and decree dated 20.03.2015 passed in O.S.No.28 of 2014, but not for realization of amount or for attachment of property. However, the petitioners filed claim petition in E.A.No.141 of 2017 under Order XXI Rule 58 (2) CPC read with Section 151 CPC. The Executing Court, after having elaborately considering the rule position, dismissed the petition holding that there is no attachment of E.P. schedule property and claim is not maintainable under Order XXI Rule 58 (1) CPC. The partition suit O.S.No.157 of 2014 filed by the petitioners against the brother and the 1st respondent decree holder is pending and the petitioners could seek remedies in the said suit. Hence, the present Civil Revision Petition came to be filed against the impugned order.

(3.) Sri V.R. Reddy Kovvuri, learned counsel for the petitioner would mainly contend that the petitioners are living in the same house jointly constructed by their forefather by inheritance. On the sole ground that the claim petition is filed under Order XXI Rule 58 CPC and admittedly, there is no attachment of E.P. schedule mentioned property. It is well settled that mere quoting of wrong provision of law does not disentitle a person from being heard for his valid rights and decide the same on merits thereby the Executing Court grossly erred in dismissing the petition. The learned counsel placed his reliance on the judgment of the Apex Court in Shreenath and another v. Rajesh,19989 AIR(SC) 1827 wherein the issue falls for consideration is whether third party to the decree could maintain a petition filed under Order XXI Rule 97 of CPC and the same is answered affirmatively in favour of the petitioner therein. The counsel also placed his reliance in the case of Apex Court in Silverline Forum Pvt Ltd., v. Rajiv Trust and another, 1998 3 SCC 723 and in T.N.V. Ravi Kumar v. Sumee Pal Singh and others, 2015 2 ALD 599 and also in unreported judgment of this court in C.R.P.No.2935 and 3559 of 2016, wherein the issue is with regard to the petition filed under Order XXI Rules 97, 101 and 102 and Section 35 (1) CPC, where the resistance or obstruction by any person to delivery of possession in execution of decree of ejectment and held maintainable, which have no help to the petitioners' case.