CH RANGA REDDY Vs. M SURYANARAYANA REDDY

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the order dated. 14-08-2008 in e. P. No. 32 of 2003 in O. S. No. 32 of 1985 on the file of the Court of the Junior civil Judge, Penukonda. The revision petitioners are the Judgment Debtors 1 to 6, 9 and 11 to14 whereas the 1st respondent herein is the Decree Holder in O. S. No. 32 of 1985. The respondents 2 to 4 herein are the Judgment Debtors 7, 8 and 9. The facts in brief are as under: the 1st respondent herein filed O. S. No. 32 of 1985 for declaration of his right of easement to go through the cart track in Sy. Nos. 6-2, 6-1, 5-1, 5-2, 2 and 4-1 of Vemuletipalli village shown as A, B, C, D, E in the sketch appended to the plaint. The plaintiff also sought a direction for restoration of the said cart track by the defendants and if they fail to do so, to restore the same through the Court at the cost of the defendants.

(2.) THE defendants in their written statement denied the existence of any cart track. It was also claimed that they raised a Neem and Tamarind trees towards the western side of Sy. No. 5-1 which were covered by a fence. The trial court on an appreciation of the evidence adduced by both the parties decreed the suit with costs by judgment dated. 10-08-1998. The Appeal preferred by the defendants being A. S. No. 13 of 1998 on the file of the Court of Senior Civil judge, Penukonda was dismissed and even S. A. No. 1067 of 2002 on the file of this court ended in dismissal, thus confirming the judgment and decree of the trial court in O. S. No. 32 of 1985.

(3.) THEREAFTER the Decree-holder - 1st respondent herein filed E. P. No. 32 of 2003 in the Court of the Junior Civil Judge, Penukonda for restoration of cart track. The judgment-debtors/revision petitioners contested the Execution proceedings contending that the decree was not executable inasmuch as no relief was sought or granted in the decree for removal of the trees existing on the suit schedule cart track. However, the court below by order dated. 14-08-2008 allowed E. P. No. 32 of 2003 directing the Judgment-debtors to restore the cart track within one month on or before 16-09-2008 failing which the same shall be restored through Court on payment of process. Challenging the said order, the present Civil Revision Petition is filed. I have heard the learned counsel for both the parties and perused the material on record. As could be seen, the execution petition was opposed by the judgment-debtors / revision petitioners on the ground that the decree was in-executable in the absence of a mandatory injunction for removal of trees standing on the suit schedule cart track. While referring to the report of the Advocate-Commissioner filed before the trial Court which revealed the existence of trees, it is contended by them that in the absence of a direction for removal of the said trees, the decree is in-executable.