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2023 Supreme(Online)(AP) 3070
2023:APHC:6311 HIGH COURT OF ANDHRA PRADESH TUESDAY ,THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE PRSENT THE HONOURABLE SRI JUSTICE B SYAMSUNDER CIVIL REVISION PETITION NO: 406 OF 2023 Between:
1. KINTHALI RAJESWARA RAO S/o. Late Sri Ramulu, Aged about 67 years., R/o. D.No. 10-10-26, Gajuwaka, Visakhapatnam ...PETITIONER(S)
AND:
1. MANUEL APPAYYAMMA (died)
2. Tanakala Raghunatham, S/o. Late Venkatesam, Aged about 62 years., R/o. D.No. 9-7-315, Sairam Nagar, Gajuwaka, Visakhapatnam.
3. Henry @ Babu Rao (died), 4. Rose Mary, D/o. Late Haburt Manual, Aged Major, 5. Smt. Telma., D/o. Late Haburt Manual, Aged Major, (Respondents 3 to 5 R/o. 10-10-26, Main Road., Gajuwaka, Visakhapatnam)
6. Smt. Dasini, W/o. Gurunadha Rao., Aged Major., R/o. 8-143, Jogavanipalem, Gajuwaka., Visakhapatnam.
7. Voona Rama Rao (died), 8. Smt. Voona Padmavathi., W/o. Late Rama Rao., Aged about 66 years., 9. Voona Satish, S/o. Late Rama Rao., Aged 48 years., 10. Voona Girish., S/o. Late Rama Rao., aged 46 years., 11. Voona Rajesh, S/o. Late Rama Rao, Aged 44 years. 12. Voona Sirish, S/o. Late Rama Rao., Aged 42 years., (Respondents 8 to 12 R/o. D.No. 10-10-26., Opp. CMR Shopping Mall., Main Road., Gajuwaka., Visakhapatnam).
...RESPONDENTS Counsel for the Petitioner(s): V V N NARASIMHAM Counsel for the Respondents: A S C BOSE The Court made the following: ORDER
2023:APHC:6311 THE HON’BLE SRI JUSTICE B. SYAMSUNDER CIVIL REVISION PETITION NO.406 OF 2023
ORDER:
This Civil Revision Petition is filed by the petitioner under Section 115 of Code of Civil Procedure (in short ‘CPC’) against the orders passed by the learned Judicial Civil Judge, Gajuwaka in unnumbered E.A.No. Nil of 2023 in E.P.No.153 of 2022 in O.S.No.208 of 2005 dated 15.02.2023, wherein and whereby the learned Judge rejected the petition filed by the petitioner under Order XXI, Rule 97, 98 and 101 r/w Sec.47 of CPC.
2. Before going into the merits of the case, this Court proceeded to hear maintainability of the Civil Revision Petition in view of the contentions raised by the learned counsel for the respondent.
3. The learned counsel for the petitioner would submit that though Executing Court held that petition has been rejected, virtually, the petition filed by the petitioner has been returned, due to the reason he has mentioned in the affidavit of the petitioner that his petition has been returned. He would further submit that the Civil Revision Petition is maintainable. It is the contention of learned counsel for petitioner that in view of urgency of the case, if
2 BSS, J this Court came to the conclusion that Civil Revision Petition is not maintainable, he prays to give an opportunity for the petitioner to file Civil Appeal in appropriate Court and further prays to direct the Registry to return the certified copy of the orders passed by the Executing Court filed by the petitioner in the present Revision Petition. He prays to pass necessary orders.
4. The learned counsel representing respondent No.2/DHR Mr. A.S.C.Bose would submit that when any petition is rejected it amounts to dismissal of the petition, against which regular appeal alone shall lie in view of the ratio laid down by this Court in catena of decisions. He prays to dismiss the Civil Revision Petition.
5. In view of rival submissions, the point that emerges for consideration by this Court is: Whether Civil Revision Petition under Section 115 of CPC is maintainable against the orders passed by Executing Court in E.A.Nil of 2023 in E.P.No.153 of
2022 in O.S.No.208 of 2005 dated 15.02.2023?
6. POINT: The petitioner, who is said to be third party filed petition before Executing Court under Order XXI Rule 97, 98 & 101 R/w Section 47 of CPC claiming that he is the title holder of E.P. Schedule Property and prays to determine his right, title and
3 BSS, J interest in the E.P. Schedule Property and for costs. Then Executing Court has taken objection with regard to prayer of the petitioner after considering the contents in it in view of the pendency and disposal of previous litigation between the parties. Finally it was called on bench to hear the counsel for the petitioner representing before the Executing Court and then Executing Court after hearing the learned counsel representing the petitioner, passed the order on 15.02.2023 which reads as under.
“Petitioner filed the claim petition on 05-01-
2023, then our office took objection to number the petition that how this petition maintainable as per orders In C.M.S.A No.8/2022, dt.30-12 2022 wherein the Hon’ble High Court of A.P directed the appellants/R7 to R11 to handover the vacant possession of the plaint schedule property to the
2nd D.Hr on or before 28-02-2023.
Heard.
Perused the record.
The counsel for the petitioner, contended that earlier the present claim petitioner filed an implead petition in 1.A.2/2022 and the same was dismissed, then he preferred CMSA No.8/2022 before the Hon’ble High Court of A.P. Amaravathi and the same was disposed on 05-12-2022 with a direction to the present claim petitioner to put forth his contention before the Court below in the claim petition and further directed that it is left open for the claim petitioner to seek relief of declaration of title over the subject property by way of suit before the competent civil Court of law.
4 BSS, J The counsel for the 1st respondent/plaintiff filed memo by contending that with a created cause of action with the strength of sham Sale Deed, the third
