A claim petition under Order XXI Rule 58 CPC is not maintainable when the E.P. is not filed for attachment of property, but for delivery of vacant possession.

JUDGMENT

M. Ganga Rao, J. - Unsuccessful petitioners filed this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908, against the order of dismissal of a claim petition filed under Order XXI Rule 58 (2) r/w Section 151 of the Code of Civil Procedure, 1908, passed by the III Additional Junior Civil Judge, Kadapa, passed in E.A.No.141 of 2017 in E.P.No.328 of 2015 in O.S.No.28 of 2014 on 05-03-2019.

2. The brief facts of the case are that the 1st respondent herein filed E.P.No.328 of 2015 under Order XXI Rule 10 of the Code of Civil Procedure, 1908, for delivery of vacant possession of the E.P. schedule property as per the judgment and decree dated 20-03- 2015 passed in O.S.No.28 of 2014 in respect of house and its vacant site bearing No.17/539 (Old Door No.17/450) RCC building situated at Ward No.17 Mittal Vandla Street, Kadapa Municipal Corporation. Whereas the petitioners filed claim petition in E.A.No.141 of 2017 in E.P.No.328 of 2015 under Order XXI Rule 58 (2) CPC seeking delivery of vacant possession of the petition schedule property by declaring them and their deceased sister Hurani Bee and their brother Tamboli Sabjan as absolute joint owners of the petition schedule property (property is the same as shown in the E.P. schedule property) along with costs of the suit. The petitioners state that they along with their elder sister Hurani, who died on 03-04-2017 and one brother Tamboli Sabjan, inherited the petition schedule property from their father Tamboli Nathad Saheb who died on 01-09-1971 and their mother Imam Bee died on 16-06-1988, as their father was the absolute owner and possessor of the petition schedule property. When their brother refused to partition the property, they filed partition suit O.S.No.157 of 2015 against their brother Tamboli Sabjan as well as the respondent/decree holder, who is none other than the husband of the 2nd petitioner, Smt. S. Kursheed, the judgment debtor. The 2nd respondent herein G. Venkata Subbaiah, is not related to them. They filed O.S.No.157 of 2015 on the file of Additional Senior Civil Judge's Court, Kadapa, for partition and separate possession in respect of petition schedule property and the same is pending for adjudication. The pleadings in the suit proceedings reveal that the 1st respondent decree holder purchased the petition schedule property under registered document No.656 of 2003 dated 03-01-2003 from the petitioners and their brother Tamboli Sabjan, in whose favour the petitioners relinquished their rights in the property by executing relinquishment deed dated 25-10-1993 vide document No.254/1993 by receiving an amount of Rs.35,000/-. It appears that they have no joint right and possession over the petition schedule property, whereas the 1st respondent filed suit O.S.No.28 of 2014 against the 2 nd respondent herein G. Venkata Subbaiah before the III Additional Junior Civil Judge's Court, Kadapa for eviction in respect of petition schedule property and the same was decreed. The 1st respondent filed E.P.No.328 of 2015 against the 2nd respondent for delivery of the suit schedule property. After enquiry, warrant for delivery of property with police aid was issued to Court Amin to deliver the suit schedule property, when the court Amin went to the property to deliver the possession to the 1st respondent-decree holder, the petitioners submitted objection letter and the same was filed before the Court. Then, the petitioners filed present petition. Based on the pleadings and the evidence on enquiry, the Executing Court dismissed the claim application E.A.No.141 of 2017 holding that the petition under Order XXI Rule 58 CPC is not maintainable as the E.P. is not filed for attachment of E.P. schedule property, but for delivery of the vacant possession of the E.P. schedule property and the petitioners have already filed suit O.S.No.157 of 2014 for partition of the petition schedule property and the same is pending. Based on the enquiry, the Executing Court