Mohd. Iqbal Ali vs Syed Shah Jaffar Hussain

This common order will dispose of both Civil Revision Petition Nos.8 and 9 of 2022.

2 Heard Mr.Vedula Srinivas, learned senior counsel for the revision petitioner and Mr. A. Veera Swamy, learned counsel for respondent Nos.1 and 2.

3 In Civil Revision Petition No.8 of 2022 revision petitioner has questioned the order dated 27.12.2021 passed by the III Additional Chief Judge, City Civil Court, Hyderabad in E.A.No.182 of 2021 in E.P.No.852 of 2019.

4 Likewise, in Civil Revision Petition No.9 of 2022, revision petitioner has challenged the order dated 27.12.2021 passed by the III Additional Chief Judge, City Civil Court, Hyderabad in E.A.No.183 of 2021 in E.P.No.852 of 2019.

5 Both the orders dated 27.12.2021 are identical. Therefore, the order passed in E.A.No.182 of 2021 is extracted hereunder:

“Heard the learned counsel for petitioner. Perused the main case docket order. As can be seen on the docket order the Judgment Debtors twice and made ex parte. Whenever delivery warrant was issued, the Judgement Debtors came with petitions to set aside exparte order on 22.12.2021. After treating as no counter to the Judgment Debtors, Delivery Warrant was issued. However, the Amin Filed report on 24.12.2021 that the Judgment Debtors resisted the execution and locked the door restraining the Amin from delivering the property. So there are grounds for ordering the breaking down as well as to order Police aid to the Amin. Hence these petitions are allowed.”

6 It may be mentioned that respondent Nos.1 and 2 as the plaintiffs had instituted the related suit for declaration, recovery of possession, damages and consequential injunction against respondent Nos.3 to 5 wherein the petitioner was arrayed as one of the defendants (defendant No.3). The suit was registered as O.S.No.366 of 2006. It was contested by defendant No.3 (petitioner herein) by filing written statement. Petitioner herein as the plaintiff had also filed a suit against respondent Nos.1 and 2 and another seeking a decree of declaration of his ownership and possession of the suit schedule property. The said suit was registered as O.S.No.741 of 2009.

7 Both O.S.No.366 of 2006 and O.S.No.741 of 2009 were heard together and were disposed of by the common judgment and decree dated 29.10.2018 passed by the learned III Additional Chief Judge, City Civil Court, Hyderabad. By the said judgment and decree, O.S.No.366 of 2006 was decreed in favour of the plaintiffs (respondent Nos.1 and 2 herein) holding that they had proved their title and ownership over the suit schedule property. Therefore, plaintiffs (respondent Nos.1 and 2) were entitled to perpetual injunction as prayed for. Defendants, including the revision petitioner herein, were directed to deliver the suit property to the plaintiffs within a month. On the other hand, O.S.No.741 of 2009 instituted by the petitioner was dismissed.

8 For execution of the judgment and decree dated 29.10.2018, respondent Nos.1 and 2, as decree holders, filed E.P.No.852 of 2019. In the said E.P.No.852 of 2019 an application was filed by respondent Nos.1 and 2 being I.A.No.182 of 2021 for a direction to the concerned police station to grant police protection to the Court Bailiff for executing the Court warrant dated 23.12.2021. Likewise, respondent Nos.1 and 2 filed E.A.No.183 of 2021 in E.P.No.852 of 2021 for a direction to the Court Bailiff to break open the lock of the suit schedule property. It was a petition filed under Order XXI Rule 35 (3) of the Code of Civil Procedure, 1908 (CPC).

9 As already noticed above, identical orders were passed on 27.12.2021 in E.A.No.182 of 2021 and in E.A.No.183 of 2021 which has been extracted above. From a perusal of the order dated 27.12.2021, it is seen that judgment debtors (including the revision petitioner) were twice made ex parte and when delivery warrant was issued, judgment debtors came with a petition to set aside the ex parte order on 22.12.2021. However, delivery warrant was issued. Thereafter, the Amin filed a report on 24.12.2021 to the effect that the judgment debtors (including the revision petitioner) were resisting the execution and had locked the door restraining the Amin from delivering the property. It is in such circumstances that order was issued for breaking open the lock of the suit schedule property and also ordering the police to provide assistance to the Amin.

10 It may be mentioned that petitioner had filed E.A.No.180 of 2021 under Order XXI Rule 26 CPC to stay all proceedings in E.P.No.852 of 2019. By the order dated 28.12.2021, the same has been dismissed by the learned III Additional Chief Judge, City Civil Court, Hyderabad.

11 When the two Civil Revision Petitions were moved on 04.01.2022, the following order came to be passed.

“These revision petitions have been filed against two separate orders dated 27.12.2021 passed by the III Additional Chief Judge, City Civil Court, Hyderabad, in E.A.Nos.182 of 2021 and 183 of 2021 in E.P.No.852 of 2019 allowing the decree holders to break open and take over possession of the suit property.

Learned counsel for respondent Nos.1 and 2 submits that the warrant has already been executed and possession of the suit property has been taken over.

Learned Senior Counsel for the revision petitioner seeks time to ascertain.

List on 06.01.2022.

Till then, status quo obtaining as on today shall be maintained.”

12 Identical counter affidavits have been filed by respondent Nos.1 and 2 in both the Civil Revision Petitions. It is stated that respondent Nos.1 and 2 are brothers. They had filed O.S.No.366 of 2006 against the revision petitioner for right, title and interest over the suit schedule property and also for recovery of possession. Revision petitioner filed another suit O.S.No.741 of 2009 for identical reliefs. Both the suits were tried together and were disposed of by the common judgment and decree dated 29.10.2018. While the suit of respondent Nos.1 and 2 was allowed, the suit filed by the revision petitioner was dismissed. Revision petitioner has not filed appeal against the common judgment and decree dated 29.10.2018.

13 After expiry of the limitation period for filing appeal, respondent Nos.1 and 2 filed execution petition being E.P.No.852 of 2019. Though notices were served on the judgment debtor (revision petitioner), there was no positive response from him. The judgment debtor, without filing counter to the execution petition, has been adopting delaying tactics and taking adjournments on one pretext or the other.

14 In such circumstances, the executing Court issued a warrant of possession on 16.11.2021 whereater the judgment debtor came up with three petitions on 17.11.2021 – one for advancement of hearing, the second one for recalling the warrant and the third one for stay of execution. The executing Court allowed the petitions on the condition that the judgment debtor should file counter affidavit immediately in the execution petition. However, the judgment debtor failed to file counter affidavit. As a result, the executing Court was pleased to forfeit the right of the judgment debtor to file counter and issued warrant for delivery of possession on 23.12.2021.

15 When the Bailiff approached the suit schedule property, the judgment debtor resisted the execution and locked the premises thereby restraining the Bailiff from delivering the property. To this effect, the Bailiff filed a report before the executing Court on 24.12.2021. However, the judgment debtor filed a counter affidavit on 23.12.2021 and also filed E.A.No.180 of 2021 for stay of further execution proceedings. However, by order dated 27.12.2021, the executing Court permitted the Bailiff to break open the lock of the suit schedule property for the purpose of execution of the warrant for possession and also directed the police to provide assistance. Thereafter, on 28.12.2021 E.A.No.180 of 2021 filed by the revision petitioner was dismissed by passing a reasoned order holding that there were no grounds to stay the execution.

16 It is stated that pursuant to the order of the executing Court, the Bailiff proceeded to the suit schedule property on 04.01.2022 and executed the warrant on that day at 1.50 P.M. Possession of the suit schedule property was also delivered to the decree holders on 04.01.2022 itself.

17 Revision petitioner has not filed any reply to the counter affidavit filed by respondent Nos.1 and 2 in both the Civil Revision Petitions.

18 From the narration of facts as recorded above, it is evident that judgment and decree of the trial Court dated 29.10.2018 has attained finality. By the said judgment and decree, ownership of respondent Nos.1 and 2 over the suit schedule property has been acknowledged and declared by the trial Court. After the appeal period was over, respondent Nos.1 and 2 being the decree holders had initiated execution proceedings. On one pretext or the other, the judgment debtor i.e. revision petitioner had stalled the execution proceedings. Finally the warrant of execution has been carried out and possession of the suit schedule property has been handed over to the decree holders.

19 In the facts and circumstances of the case, this Court finds no error or infirmity in the impugned orders dated 27.12.2021. No case for interference, much less under Article 227 of the Constitution of India, has been made out.

20 That being the position, both the Civil Revision Petitions are hereby dismissed. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in this revision petition shall also stand dismissed.