AMMANABROLU SRINIVASULU REDDY Vs. VETURU BHAKTHAVASALA REDDY

JUDGEMENT

(1.) Aggrieved by the order- dated 5.5.2004 passed in C.M.A. No.11 of 2003 on the file of III Additional District and Sessions Judge (FTC), Nellore, the defendant has filed this Civil Revision Petition.

(2.) Scenario of the case, in brief, giving rise to filing of this Civil Revision Petition by the defendant is as follows: The petitioner is the 1st defendant, and the 1st respondent is the plaintiff in O.S. No.25 of 1982 on the file of Senior Civil Judge, Kowur. One Mogili Venkataseshaiah is the second defendant in the said suit. The plaintiff filed the suit for permanent injunction restraining the defendants and their men not to interfere with the peaceful possession and enjoyment of the suit schedule mentioned land or to cut and carry away the crop raised by him therein. The suit schedule lands are:-Survey No.793 admeasure Ac.3-94 cents and Survey No.791/A admeasuring Ac.4-02 cents. It is averred in the plaint that he took the lands on lease under a lease deed from Balakrishna Reddy who obtained the possession of the suit lands through the process of Court in E.A. No.273 of 1979 in O.S. No.26 of 1976. The defendants resisted the suit by filing written statement. The suit ended in dismissal on 2.11.1989. Assailing the judgment and decree passed in O.S. No.25 of 1982, the plaintiff therein filed A.S. No.40 of 1989, on the file of the Senior Civil Judge, Kowur. Pending disposal of the appeal, the plaintiff along with his wife E. Kameswaramma filed OS No.3 of 1990 against the defendant-Srinivasul Reddy and four others i.e., Konjeti Viswanatham, Konjeti Sreenivasulu, Mogili Satyanarayana and Mogili Venkata Subbaiah seeking the following reliefs:

(3.) Learned Counsel for the petitioner/JDR No.l submits that R1/decree holder having filed O.S.3/90 seeking possession of the property in dispute cannot be permitted to file an application in execution Court for restitution of the same property. He also submits that the question of restitution arises when the disposition of the parties is in pursuance of the orders of the Court and as there is no such situation in this case, the petition filed by Rl/decree holder under Section 144 of CPC is per se not maintainable and the same is liable to be dismissed. His further submission is that the petitioner/JDR No.l is not in possession of the property with effect from 18.8.1994 and therefore the question of directing to the petitioner/JDR No.1 to deliver the suit schedule land to Rl/decree holder does not arise. He placed reliance on the decision of Madras High Court in Periyasamy v. Karuthiah, AIR 1918 Mad. 1293, and our High Court in Sanampudu Krishna Reddy v. Pallamreddy Kota Reddy, 1980 (1) ALT 429.