The petitioners filed O.S.No.656 of 2001 in the Court of Principal Junior Civil Judge, Proddatur against the 1st respondent for eviction from the suit schedule premises. The suit was decreed on 19.02.2003. The petitioners filed E.P.No.56 of 2004. The E.P. was allowed and the 1st respondent was evicted and the petitioners were put in possession on 01.08.2004. The delivery of possession was recorded in the E.P. on 13.08.2004. Since the 1st respondent did not remove the articles that were present in the premises, at the time of eviction, the bailiff of the Court removed the same and entrusted them to the 2nd respondent, for safe custody. The 1st respondent filed E.A.No.529 of 2004 in E.P.No.56 of 2004 for re-delivery of the articles belonging to him. The Executing Court allowed the I.A. and directed that the articles be handed over to him.

Stating that the order in E.A.No.529 of 2004 was not complied with, the 1st respondent filed E.P.No.200 of 2008. It was mentioned in the E.P. that he is entitled for decretal amount of Rs.4,20,000/- and interest of Rs.1,87,000/-. He prayed for attachment and sale of landed property and house of the petitioner. An objection was raised by the office of the Executing Court as to the maintainability of the E.A. Through its order, dated 20.06.2008, the learned Judge overruled the objection by making reference to Order 21 Rule 42-A C.P.C. and directed that the E.P. be numbered. It was also observed that the first respondent is entitled to be awarded compensation against the custodian of the property i.e. the 2nd respondent. Accordingly, the E.P. was numbered as E.P.No.200 of 2008.

The executing Court took up the E.P. for hearing. The petitioners opposed the same and questioned its very maintainability. The E.P. was allowed through order, dated 27.11.2009. A finding was recorded to the effect that the properties belonging to the 1st respondent were misappropriated by the petitioners herein. For realization of the value of the said goods, the executing Court directed attachment of the properties owned by the petitioners. Further directions were issued for sale of the attached properties. The petitioners challenge the said order.

Sri M.N.Narasimha Reddy, learned counsel for the petitioners submits that the E.P. filed by the first respondent is not at all maintainable in law, since there was no decree in his favour. He contends that there was not even an adjudication as to the articles that were found missing in the hands of the 2nd respondent, much less the value thereof and the order under revision cannot be sustained in law or on facts.

Sri P.Veera Reddy, learned counsel for the 1st respondent submits that his client was forcibly evicted and the articles found in the premises were entrusted to the custody of the 2nd respondent. According to him, Rule 43-A of Order 21 C.P.C. confers right upon the 1st respondent to recover the goods owned by him or value thereof and viewed in that context, the E.P. as well as the order passed therein are very much valid and legal.

Filing of an E.P. by a defendant in a suit is rare phenomenon. It is only when a decree grants specific relief in favour of a defendant, such as by accepting the counter claim, or awarding costs in favour of the defendant while dismissing the suit, that an occasion would arise for the defendant to file an E.P. Other instances include the decrees in suits for partition, where irrespective of the nature of array of parties, another party to it can seek enforcement or where mutual obligations are placed upon the decree holder as well as the Judgment debtor.

The 1st respondent is tenant of premises owned by the petitioners. He was running an automobile shop. The petitioners filed O.S.No.656 of 2001 for the relief of eviction from the premises and recovery of arrears of rent. The suit was decreed on 19.02.2003 after trial. The first respondent no doubt filed A.S.No.21 of 2003 in the Court of II Additional District Judge, Proddatur aga