Heard both sides.

2. This Civil Revision Petition is directed against the order dated 4-12-2006, passed by the II Additional Senior Civil Judge, Kakinada, East Godavari District, directing to issue warrant for delivery of the properties mentioned in the Will under Ex.B-9, to the decree-holders, in E.P.No.78 of 2006 in O.S. No.7 of 1984, filed under Order 21 Rules 35 and 36 read with Section 144 of the Code of Civil Procedure (for brevity “the C.P.C.”).

3. Petitioners are the judgment-debtors and the respondents are the decree-holders, in the E.P., before the executing Court.

4. For the sake of convenience, in this order, the petitioners and the respondents will be referred to as “the judgment-debtors” and “the decree-holders”, respectively.

5. The brief and relevant facts are that one Pentakota Krishna Bhagavan - the judgment-debtor No.1, claiming to be the adoptive son of the P. Sree Rama Murthy, filed a suit O.S.No.7 of 1984 for partition of the suit schedule properties and for allotment of half share thereof; that during the pendency of the suit, the said P. Sree Rama Murthy died on 20-11-1985; that by virtue of a Will, dated 20-2-1980, under Ex.B-9, the decree holders came on record as the legal representatives of the said P. Sree Rama Murthy and contested the suit and that the suit was decreed eventually. Aggrieved by the same, the judgment-debtor No.1 had preferred an appeal A.S.No.720 of 1997, which was dismissed by a Division Bench of this Court, by judgment and decree, dated 20-6-2003, which were carried in appeal Civil Appeal No.5941 of 2005, before the apex Court, by the judgment-debtor No.1.

6. In the meanwhile, another litigation was initiated by the judgment-debtor No.2, for maintenance against the said P. Sree Rama Murthy, in O.S.No.287 of 1984. The facts and the result of the said suit are not relevant nor have any bearing on the present controversy. The apex Court had allowed the Civil Appeal No.5941 of 2005, which resulted in reversal of the judgment and decree, passed by the trial Court and this Court, and the net result is, execution of the decree passed by the apex Court. In the meanwhile, it appears that, possession of the suit schedule properties had been taken over by the judgment-debtors. However, in order to have the decree, passed by the apex Court, executed, the present E.P.No.78 of 2006 has been filed by the decree-holders under Order-XXI Rules 35 and 36 read with Section 144 of the CPC.

7. The trial Court, having considered the material, available on record, held that the E.P., is maintainable and the delivery of the properties can be effected and eventually allowed the said E.P., directing to issue a warrant for delivery of the properties mentioned in the Will, under Ex.B-9, to the decree-holders, as per the said will. Aggrieved by the same, the present Civil Revision Petition has been filed by the decree-holders.

8. The contentions of the judgment-debtors, before the executing Court, were that the E.P., was not maintainable for restitution of the properties; that for restitution of the properties, the decree-holders have to file a separate petition under Section 144 of the CPC, but not an execution petition and hence, in the present E.P., they are not entitled to seek restitution of the properties under Section 144 of the CPC.

9. Sri Vedula Venkataramana, the learned counsel appearing for the decree-holders, contends that in view of the language employed in the decree, passed by the apex Court, it amounts to a declaratory decree and since definite determination is not made under Section 144 of the CPC, the question of delivery of possession by way of restitution in favour of the judgment-debtors does not arise. It is his further contention that the executing Court went wrong in allowing the E.P., filed under Order-XXI Rules 35 and 36 of the CPC, instead of allowing the same under Section 144 of the CPC, in which event, their valuable right, to file an appeal, is lost, since the order passed under S