T. S. VASANTHAKESAVULU Vs. K. KAMALAMMA

JUDGEMENT

(1.) This revision is filed challenging the order dated 14.09.2017 in EP.No.28 of 2016 passed by the Junior Civil Judge, Cyberabad at Hayathnagar, whereunder an execution petition filed seeking eviction of judgment debtors No.2 and 3 was dismissed.

(2.) The petitioner/plaintiff instituted a suit in O.S.No.18 of 2008 on the file of the Junior Civil Judge, Cyberabad at Hayathnagar, seeking relief of perpetual injunction to restrain the respondents/defendants from interfering with his peaceful possession and enjoyment of the suit schedule A property bearing Plot No.21, admeasuring 217 sq. yards and suit schedule B property bearing Plot No.19, admeasuring 183 sq. yards both situated in Sy.No.30, Munganur Village, Hayathnagar Mandal, Ranga Reddy District. The suit was dismissed under judgment dated 28.09.2012. Aggrieved thereby, the petitioner/plaintiff filed an appeal in A.S.No.354 of 2012 before the Principal District Judge, Ranga Reddy District at L.B. Nagar. The appeal was allowed by judgment dated 30.06.2015 thereby granting decree of injunction in favour of the petitioner/plaintiff. The petitioner filed EP.No.28 of 2016 seeking eviction of the judgment debtors No.2 and 3 and to handover physical possession of the suit schedule property to the petitioner. By order dated 14.09.2017, the trial Court dismissed the petition as not maintainable. It was observed by the trial Court that the decree is silent with regard to delivery of possession and there was no direction in the decree for demolition, eviction and delivery of possession. Thus, the petitioner/plaintiff cannot seek for delivery of possession. The scope of the suit is limited to injunction simplicitor.

(3.) Mr. T. Vasanthakesavulu, party-in-person, submitted that the EP is maintainable under Order 21 CPC. Even assuming that none of the provisions under Order 21 CPC is applicable, still the Court below ought to have entertained the petition as being filed under Section 151 CPC. He further submitted that mere mentioning of wrong provision cannot be a ground to dismiss the EP. He was dispossessed during the pendency of the suit and entitled to delivery and restoration of possession and the Court below ought to have entertained the execution petition. He relied on a judgment of this Court in JAMALUDDIN v. MIRZA QAUDER BAIG , 1995 1 ALT 115 and a judgment of the Punjab and Haryana High Court in MAM RAJ v. SABIRI DEVI,1996 AIR(P & H) 96 .