BIRUDAVOLU VENKATA SUBBAMMA Vs. MALLAPU PADMAVATHAMMA

JUDGEMENT

(1.) The petitioner obtained the decree in O.S.No.5/1986 on the file of the Principal Junior Civil Judge, Kovvur, 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. No.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.