THE HON’BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No.1811 of 2023

ORDER :

Heard learned counsel for the petitioner and Sri A.Ravinder Reddy, learned Senior Counsel for Sri Ch.Venkateshwar Reddy, learned counsel for respondent Nos.1 to 7, and perused the record.

2. This Civil Revision Petition under Section 115 of the Code of Civil Procedure (CPC) is filed aggrieved by the docket order dated 19-06-2023 in E.A. (SR) No.2257/2023 in E.A.No.5/2023 (Old E.A.No.110/2018) in E.P.No.86/2022 (Old E.P. No.49/2016) in O.S.No.1214 of 2005 on the file of the Principal Senior Civil Judge, Medchal-Malkajgiri District at Malkajgiri, Hyderabad.

3. The Revision Petitioner herein is the petitioner in the underlying E.A. and 2^nd respondent in E.P.No.49/2016 and

1^st defendant in the suit.

4. The 1^st respondent herein has filed the subject suit for partition and separate possession of the schedule property against the revision petitioner/1^st defendant and six others.

5. In aforesaid suit, preliminary decree was passed on 16-02-2009, whereby the suit schedule property was divided into 8 parts and thereafter on the basis of the Advocate- Commissioner’s report, the suit schedule property was delineated among the parties to the suit and a final decree was passed on

02-12-2014.

6. Respondent Nos.2 and 3 herein and defendant Nos.2 and 3 in the suit filed Execution Petition vide E.P.No.49/2016 against the 1^st respondent/plaintiff and petitioner/2^nd respondent and respondent Nos.3 to 7 herein.

7. In the aforesaid E.P., respondent Nos.8 to 11 have filed an application under Order 21 Rule 97 to 99 and 101 CPC vide E.A.No.110/2018 claiming themselves to be the tenants, and their, claim is to be adjudicated before the E.P. is being proceeded with.

8. However, on dismissal of the said E.A.No.110/2018 by the Execution Court, respondent Nos.8 to 11 herein have preferred a Revision before this Court vide C.R.P.No.302 of 2019, and this Court by order dated 15-02-2023 set aside the order of the Execution Court dated 21-01-2019 in E.A.No.110/2018 in E.P.No.49/2016 and directed the Execution Court to dispose of the claim petition as early as possible preferably within a period of four months from the date of receipt of copy of the order.

9. Pursuant to the aforesaid order of this Court in C.R.P.No.302 of 2019, the Execution Court is required to adjudicate the claim petition filed by respondent No.8 to 11. At that stage the petitioner herein had filed the underlying application in E.A.No.110/2018 filed by respondent Nos.8 to 11 as claimants, under Order 21 Rule 106 r/w Section 151 CPC seeking to set aside the order dated 14-06-2023 and to provide an opportunity to the petitioner herein for her evidence.

10. On the same day i.e. on 16-06-2023, the petitioner filing the underlying application, the same was returned with endorsement- ‘respondent No.2 not filed counter, remained ex parte in E.P.

long back, E.P.No.___ of 2016, how the respondent No.2 can file the petition in E.A. Hence, returned’.

11. Petitioner contends that on the office raising the aforesaid objection, she had re-submitted the underlying application on 19-06-2023 by complying with the objection, and the compliance recorded by the petitioner is as under:

“In E.A.No.5 of 2022 respondent No.2 not remained as ex- parte in EA and filed counter in EA on 21-12-2018. The EA No.5 of 2022 filed by claim petitioners/tenants against EP schedule property which is to be treated as a suit under Order XXI Rule 101 of CPC as such, EP proceedings are different from EA, accordingly respondent No.2 can file the present petition”.

12. On petitioner re-submitting the underlying application, the Execution Court rejected the same on 19-06-2023 with the following endorsement:

“The petitioner filed this application under Order 21 Rule 106 CPC to set aside docket order dated 15-06-2023 and to set aside exparte against the petitioner in EA No.5/2023.

The petitioner herein is respondent No.2 in EP No.49/2016 in OS No.1214/2005 (renumber