ORDER :

U. Durga Prasad Rao, J.

1. Challenging the notice dated 19.10.2018 issued by the execution Court i.e., Senior Civil Judge, Ramachandrapuram in EA No. 494/2018 in EP No. 210/2010 in OS No. 279/2006, JDR No. 2 filed the instant C.R.P. under Section 115 CPC.

2. The factual matrix of the case which led to file the CRP is thus:

(a) The 1st respondent/DHR obtained money decree against the JDRs on the file of II Additional Senior Civil Judge Court, Visakhapatnam and got transferred the decree for execution to the Court of Senior Civil Judge, Ramachandrapuram. He filed EP No. 210/2010 for sale of E.P. schedule landed property and for realisation of E.P. amount. The JDRs contested the E.P. inter alia contending that they were not the original borrowers and the suit was filed against them as LRs of deceased borrower T. Chandra Reddy and so their liability was only to the extent of the properties left behind by late Chandra Reddy, but they were not personally liable. They contended that the E.P. schedule properties were originally ancestral properties and while the JDRs were minors, in order to safeguard their interest their next friend filed a partition suit OS No. 100/2008 and in that suit the properties were divided and the JDRs were allotted their respective shares in IA No. 409/2011 in OS No. 100/2008 by the Senior Civil Judge, Ramachandrapuram. The E.P. schedule items 1 & 2 thus fell to the share of JDR No. 2 as per the decree and judgment in the said suit and therefore, those properties are exclusive and absolute properties of JDR No. 2. They also contended that a mortgage suit is pending against the E.P. schedule property in OS No. 9/2011 in the Court for the trial of offences under SC & ST (Prevention of Atrocities) Act-cum-Additional District Court, Rajahmundry.

(b) It should be noted that with the same averments JDR No. 2 filed a claim petition under Order XXI Rule 58 CPC in EA No. 532/2016 to raise the attachment over the EP schedule properties and to set aside the sale dated 6.6.2016 held in the E.P. The 1st respondent/DHR opposed the said petition. After due enquiry the execution Court dismissed the said petition on 17.4.2017 holding that the partition suit in OS No. 100/2008 was filed two years after passing of decree in OS No. 279/2006 and hence, the said suit was a collusive one. The Court further observed that since the debt contracted by late Chandra Reddy was not established as Avyavaharika debt, the JDRs are liable to discharge the debt under pious obligation theory. Since the claim petition was dismissed, the execution Court in its order dated 17.4.2017 confirmed the auction sale and issued Sale Certificate to the decree holder who eventually happened to be the auction purchaser also. The Court closed the E.P. It appears aggrieved by the aforesaid order JDR No. 2 filed appeal before the District Court, Rajahmundry and same is pending.

(c) While so, DHR filed EA No. 494/2018 for physical delivery of the EP schedule property and the Court issued warrant of delivery under Order XXI Rule 95 CPC to the field assistant on 19.10.2018 to deliver the EP schedule property.

Questioning the said delivery warrant, the instant CRP is filed.

3. Heard Sri Chaparla Sitaram, Counsel representing Sri T. Phanindra Reddy, learned Counsel for petitioner, and Sri S.V.S.S. Sivaram, learned Counsel for first respondent.

4. At the first instance, learned Counsel for petitioner challenged the delivery proceedings on the same averments with which the petitioner/JDR No. 2 filed claim petition in EA No. 532/2016. Such arguments could not be appreciated for the reason, the execution Court in its order dated 17.4.2017 already dismissed EA No. 532/2016 and aggrieved thereby the petitioner filed an appeal before the District Court and same is pending.

5. Then learned Counsel, on the instructions of the petitioner, requested the Court to permit th