Telangana High Court

CRP/5660/2011 of K.Subrahmanyam, Vs P.Venkateshwarlu, on 29 December 2011

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Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5660 OF 2011 Dated: 29.12.2011 Between : K.Subrahmanyam … Petitioner And P.Venkateshwarlu and 2 others … Respondents The Court made the following:- THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5660 OF

THE HON’BLE Ms. JUSTICE G. ROHINICIVIL REVISION PETITION No.5660 OF 2011

Between :K.Subrahmanyam

Dated: 29.12.2011

… Petitioner

AndP.Venkateshwarlu and 2 others

… Respondents

The Court made the following:-

THE HON’BLE Ms. JUSTICE G. ROHINICIVIL REVISION PETITION No.5660 OF 2011

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O R D E R:

This revision petition is directed against the order dated30.08.2011 in E.A.No.588 of 2007 in E.P.No.434 of 2007 inO.S.No.3117 of 2006 on the file of the Court of the I Additional JuniorCivil Judge, Ranga Reddy District.

The facts in brief are as under:

The 1[st] respondent herein/plaintiff filed O.S.No.3117 of 2006against the revision petitioner and the respondents 2 and 3 herein forinjunction restraining them from constructing any structures within theopen space situated to the eastern side and southern side of theplaintiff’s schedule property by violating the approved building plan. By judgment dated 18.04.2007 though the said suit was dismissed aswithdrawn, it was ordered that if the defendants 1 and 2 make anyconstruction in deviation of sanctioned plan, the plaintiff was at libertyto get the deviated portion removed through process of Court.

Against the said judgment and decree, to the extent ofdismissing the suit as withdrawn, the revision petitioner/1[st] defendantpreferred A.S.No.199 of 2007, which is pending on the file of the IIAdditional District Judge, Ranga Reddy District at L.B.Nagar. Therevision petitioner/1[st] defendant also preferred cross objectionscontending that the liberty granted to the plaintiff by the trial Court forgetting the deviated portion removed through process of Court isimpermissible under law.

While so, the plaintiff/1[st]respondent herein preferredE.P.No.434 of 2007 alleging that the defendants 1 and 2 have beenmaking illegal constructions without leaving set backs on the foursides of the building. In the said execution proceedings, the revisionpetitioner/J.Dr.No.1 filed E.A.No.588 of 2007 under Section 47 ofC.P.C. with a prayer to dismiss the execution petition as not maintainable. After hearing both the parties, the Court belowdismissed E.A.No.588 of 2007 by order dated 30.08.2011. Aggrievedby the said order dated 30.08.2011, the present Revision Petition isfiled.

It is urged by the learned counsel for the revision petitioner thathaving preferred an appeal against the judgment and decree, dated18.04.2007, it is not open to the 1[st] respondent to seek execution ofthe said decree. While relying upon a decision of the Supreme Court in BALRAJ TANEJA v. SUNIL MADAN[[1]], it is further contended that thedecree sought to be executed is not a decree within the meaning ofSection 2(2) of C.P.C.

I have also heard the learned counsel for the respondents andperused the material available on record.

The certified copy of Memorandum of Grounds in A.S.No.191 of2007 has been placed before this Court by the learned counsel for therespondents and a perusal of the same shows that the appealpreferred by the 1[st] respondent herein against the judgment inO.S.No.3117 of 2006 was only to the extent of dismissal of suit aswithdrawn.

Therefore, the 1[st] respondent is entitled to take executionproceedings in terms of the liberty granted by the Court below to getthe deviated portion removed through the process of the Court. Hencethe contention that the execution petition is not maintainable cannot beaccepted. However it is always open to the revision petitioner to filehis counter and contest the execution proceedings on merits.

Accordingly, the Civil Revision Petition is dismissed. No costs.

___________

G. ROHINI, J

Date: 29.12.2011 Ivd

[1](1999)8 SCC 396

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