JUDGMENT :

1. Heard Sri Satyanarayana Nimmala, learned counsel for the petitioner and perused the material on record.

2. The petitioner is the defendant/judgment debtor No.3.

3. The plaintiff respondent No.1 filed O.S.No.147 of 2011 for a decree directing the defendants to vacate and surrender vacant possession of the plaint scheduled property, as also for payment of the arrears of rent and damages.

4. The suit was decreed vide judgment/decree dated 24.11.2017 passed by the learned Principal Senior Civil Judge, Tirupati.

5. The plaintiff died on 24.11.2017 itself.

6. The respondent No.1, son of the original plaintiff/decree holder, filed E.P.No.12 of 2020.

7. The learned Principal Senior Civil Judge, Tirupati by order dated 03.03.2023 issued delivery warrant against the petitioner/judgment debtor under Order XXI Rule 35 C.P.C.

8. Challenging the order dated 03.03.2023 the present Civil Revision Petition has been filed.

9. Learned counsel for the petitioner submitted that the E.P was filed under Order XXI Rule 35 C.P.C which provision is not applicable. In his submission, the application ought to have been filed under Order XXI Rule 36 C.P.C., as the petitioner/judgment debtor is the tenant in occupancy of the plaint schedule property and for execution of a decree for delivery of immovable property in the occupancy of a tenant, specific provision is Order XXI Rule 36 C.P.C. His submission, in other words is, that the decree holder is not entitled for actual possession but only symbolic or constructive possession.

10. Learned counsel for the petitioner next submitted that the petitioner filed counter affidavit in E.P, that the respondent No.1 decree holder be put to a strict proof that he was entitled to get execution of the decree. But the question if he was the ‘legal representative’ of the deceased decree holder was not decided as per Order XXII Rule 5 C.P.C. He placed reliance in the case of Varadarajan vs. Kanakavalli & others, (2020) 11 SCC 598.

11. Learned counsel for the petitioner next submitted that the notice of the Execution Case was not issued under Order XXI Rule 22 C.P.C, but wrong provision of Order XXI Rule 35 C.P.C was mentioned in the notice.

12. I have considered the submissions of the learned counsel for the petitioner and perused the material on record.

13. In view of the submissions advanced the following points arise for consideration:

i) Whether the E.P was filed under correct provision of Order XXI Rule 35 C.P.C. or it ought to have been filed under Order XXI Rule 36 C.P.C. ?

ii) Whether the E.P filed by the respondent No.1 (decree holder representative) was maintainable without deciding if respondent No.1 was the legal representative of the deceased decree holder, as per Order XXII Rule 5 C.P.C. ?

POINT NO. 1:

14. Learned counsel for the petitioner submitted that the petitioner being a tenant the E.P for execution of the decree for delivery of immovable property in occupancy of the petitioner/tenant should have been filed under Order XXI Rule 36 C.P.C which is the specific provision against tenant and it was not maintainable under Rule 35, which is a general provision. In his submission only constructive possession or symbolic possession could be delivered and not actual possession.

15. It is relevant to reproduce Order XXI Rules 35 and 36 C.P.C. as under:-

Order XXI Rule 35:

“Decree for immovable property:-

(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possessi