KONDAPATI TEJO ANANTHALAKSHMI Vs. KONDEPATI MANIKYAM

JUDGEMENT

(1.) The petitioners/appellants in S.A.M.P. No. 853 of 2011 seek direction to the respondents not to dispossess the petitioners from the plaint schedule property pending disposal of the second appeal. After admission of the second appeal on substantial questions of law, this Court on 6.7.2010 in S.A.M.P. No. 371 of 2010 ordered status quo until further orders. This status quo order was obtained by the appellants without disclosing delivery proceedings on 08.01.2010 in the execution proceedings in the executing Court and also the appellant's own petition filed therein on 25.02.2010 by way of EA.SR. No. 1479 of 2010 in E.P. No. 184 of 2009 to declare the delivery effected on 8.1.2010 as null and void and not to record the delivery. Subsequently when the said fact was brought to the notice of this Court in SA.M.P. No. 119 of 2011 requesting to vacate the status quo order, this Court by order dated 07.02.2011 vacated the status quo order. But while vacating the status quo order, this Court permitted the appellants to file another application for renewing the status quo order in the event of the statement of delivery of possession on 08.01.2010 is incorrect. Thereupon, the appellants become emboldened to file the present petition for giving directions to the respondents on the ground that there was no physical delivery of possession on 08.01.2010. While so, the executing Court on 29.4.2011 after hearing all the counsel, passed order in EA.SR.No. 1479 of 2010 in EP No. 184 of 2009 dismissing the same finding that the delivery is effected according to law on 08.01.2009(mistake for 2010). Questioning the same, the Judgment Debtors who are the appellants in the second appeal filed CRP No. 4505 of 2011. On 08.12.2011 this Court in CRP directed the Additional District Judge, Kovvur to send report as to whether physical possession of the schedule property has been delivered to the decree holder or not, in order to find out whether physical possession of the property was delivered to the decree holder or not. The Additional District Judge, Kovvur after recording the statements of deponents sent report to this Court to the effect that there are discrepancies in the statements of deponents and found as follows:

(2.) The said enquiry report is invalid as it was an unilateral report by the Additional District Judge. It is not as if the Additional District Judge was making an enquiry on administrative side to record statements of deponents and to give one-sided report. The Additional District Judge was directed to give report on judicial side in judicial proceedings. Therefore, he should have recorded the statements of witnesses in the presence of all the parties and giving due opportunity to the opponents to cross-examine the said deponents. Since it was not done in this case, the said report of the Additional District Judge has no value in the eye of law. In any event, natural and minor discrepancies do occur when several persons were giving statements. They cannot be sole basis for reporting that there was no physical delivery.

(3.) This is not a case where the field assistant/bailiff of the Court prepared the delivery receipt by sitting in the Court compound without going to the suit village at all. Though some of the mediators and witnesses in the delivery warrant including the 1st Judgment Debtor speak as if their signatures were obtained in the village, they could not explain as to what made them to sign in such manner when the delivery mentioned in the delivery receipt did not allegedly take place in their presence.