THE HONOURABLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.2458 of 2024

ORDER:

Heard Sri B. Dhananjaya, learned counsel for the revision petitioners and Sri N. Bhujanga Rao, learned counsel for respondent No.1. Perused the entire record.

2. The Civil Revision Petition is directed against the order dated 22.07.2024 in E.P.No.23 of 2024 in O.S.No.3113 of 2009 on the file of the VI Junior Civil Judge, City Civil Court at Hyderabad, (‘Executing Court’).

3. The brief facts are that respondent No.1 herein/decree holder filed suit in O.S.No.3113 of 2009 seeking mandatory injunction for demolition of illegal constructions carried out by the revision petitioners in schedule I and II properties which are flat Nos.1 and 2 and the boundaries given thereto are that of entire flat Nos.1 and 2. The suit was decreed on 13.03.2012 and aggrieved by same an appeal was preferred in A.S.No.138 of 2012 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, which was dismissed on 22.01.2016. Pursuant to dismissal of the appeal, E.P. was filed vide E.P.No.638 of 2021. In the said E.P., the revision petitioners took a specific plea that dimensions of the alleged illegal constructions are not mentioned to identify the property and based on same, the Executing Court dismissed the E.P. vide order dated

12.07.2023. Thereafter, second E.P. was filed in E.P.No.23 of 2024, in the second E.P. also the revision petitioners have specifically claimed that the schedule of the E.P. is not identified therefore, decree cannot be executed. Further, it is contended that the second E.P. is not maintainable as the order in the first E.P.No.638 of 2023 acts as res judicata, as such, sought dismissal of the second E.P. However, the Executing Court allowed E.P.No.23 of 2024 on 22.07.2024 issuing warrant of demolition of unidentified property. Aggrieved by the same, the present revision is preferred.

4. In grounds of revision, it is pleaded that the Executing Court has not considered the plea of res judicata with respect to maintainability of the second E.P. and passed the impugned order. Further, it is pleaded that the first E.P. was dismissed on the ground that the E.P. is not executable for want of identification of property and therefore, the same Executing Court cannot allow the second E.P. and therefore, prayed that the impugned order be set aside.

5. The revision petitioners filed written arguments referring to schedule given in the suit more particularly that of the illegal structures. It is argued that the details of the construction that was being carried, which is sought to be demolished, has not been stated and therefore, the decree is not executable for want of identification of property. In the current E.P., a sketch plan of illegal construction is provided. It is alleged that the rough sketch plan does not show that there is a construction which is under progress and it is not the case of respondent No.1/decree holder that there is unauthorized construction which is not part and parcel of the suit schedule property. The unauthorized construction shown in the sketch is not part of the suit schedule property and therefore, the said construction cannot be demolished. Further, it is the case of the revision petitioners that sketch plan does not contain the signature of the authorized person and there is no evidence to show that respondent No.1/decree holder has verified or surveyed the property to come to the conclusion that the extent of the property shown in the plan is true and correct. Reference is made to the finding of the Executing Court in the first E.P. to contend that the details of illegal construction carried out are not mentioned. Therefore, the E.P. is not maintainable. Further, it is argued that the order passed in the first E.P. operates as res judicata and therefore, the second E.P. is not maintainable. Reference is made to Section 11 explanation 7 of the C.P.C to emphasize that the doctrine of res judicata is applicable t