IN THE COURT OF XIII ADDL. DISTRICT JUDGE, VISAKHAPATNAM AT GAJUWAKA

Present: Sri G.Shanmukha Rao, XIII Addl.District Judge

Wednesday, this the 31st day of July, 2024

E.P.3/2024 in O.S.No.96/2016

Between

G.Siarama Krishna Reddy, s/o Subba Reddy, Hindu, aged 49 years, Advocate by Profession, r/at D.No.8-60-6/1, 1st Lane, Vidyanagar, Old CBI Office Road, Visakhapatnam, presently at D.No.28-21-1/G/5, Classic Complex, Dabagardens, Visakhapatnam – 530 020.

.......Petitioner/ Dhr

And

1. Bosoi Jaya, w/o Dhanunjay, Hindu, aged 47 years, working as Health Inspector, r/at Flat No.3, 1st Floor, House No.27-8-319/5, Krishna Castle, Srinagar, Vadlapudi, Gajuwaka Mandal, Visakhapatnam – 530 046. 2. Bosio Dhanunjay, s/o Donnu, Hindu, aged 47 years, working as Health Inspector, r/at rest -do-

...... Respondents/ JDrs

This petition has come up on 19.07.2024 for final hearing before me in the presence of Sri Voleti Gopal, Advocate for the Petitioner/DHr and of Sri S.Rajesh Prasad and Sri J.Syamala Rao, Advocate for the Respondents/JDRs and matter having stood over till this day for consideration, this Court delivered the following:

O R D E R

1. This is an Execution Petition filed by the petitioner/DHr under Order XXI Rule 36 of CPC to deliver the EP schedule property.

2. The decree was passed on 27.11.2023 for delivery of the schedule property. The judgment debtor did not prefer any appeal against the decree passed by the court. Appeal time is over. The judgment debtor did not choose to deliver the property and threatening that they will not deliver the property by stating that they belong to Schedule Caste and Schedule Tribe community and they will initiate the proceedings under the provisions of SC & ST (Prevention of Atrocities) Act. The JDRs are bound by the terms of the decree passed by the court to deliver the property but they are refusing to vacate the schedule property and trying to induct unauthorized persons in the schedule property with an intention to cause multifarious litigations. Hence, the petition.

3. The 2nd respondent/2nd JDR filed counter and 1st respondent/1st JDR adopted the counter of the 2nd respondent/2nd JDR. The respondent denied the petition contents and further contended that they preferred the appeal before the Honourable High Court of Andhra Pradesh and the appeal A.S. is pending for numbering. The Execution Petition was posted from 03.05.2024 to 19.06.2024. During that period the honourable High Court was in vacation.

(b) The DHR has no title for the schedule property and the schedule property belongs to the vendor of the DHR i.e., PW3. He clearly stated in the cross-examination that he never sold away the property to DHR and the petition is not maintainable and prays to dismiss the petition.

4. During the course of enquiry, no oral and documentary evidence is adduced on either side.

5. Heard arguments on both sides.

6. Now the point that arises for consideration is :

Whether the petition schedule property is ordered to be delivered under Order XXI Rule 36 of Code of Civil Procedure by the JDRs 1 and 2 to the

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petitioner/DHR?

7. POINT : The contention of the petitioner/DHR is that after passing of the decree, the JDRs did not prefer any appeal and did not deliver the property and also threatening the petitioner/DHR to initiate the case under SC & ST Act. The contention of the JDRs is that the DHR has no right over the schedule property. The vendor of the DHR did not sell away the property to the petitioner.

8. The suit was partly decreed on 27.11.2013 directing the defendants to vacate the schedule property and handover the vacant possession of the schedule property within three months to the plaintiff from the date of judgment. As per the pleadings after passing of the decree, the JDRs did not handover the vacant possession to the petitioner/DHR. The respondents/ JDRs pleaded that they preferred an appeal before honourable High Court of AP and the A.S. is pending for numbering. However,the respondents did not file any piece of document to show that they preferred an appeal against the judgment and decree of this court on the file of Hon'ble High Court. The respondents also did not file any case number, status of the case on the file of honourable High Court. On the other hand, the respondents enjoying the schedule property after three months of the decree and they did not handover the possession to the petitioner/DHR as per the terms of the decree. However, during the course of proceedings, some third parties preferred some claim petitions and same were returned by this court. It is the bounden duty of the JDRs to vacate the schedule property as per the terms of the decree in the absence of any stay by the honourable High Court till today

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the JDRs did not do so. During execution proceedings executing court cannot go beyond the terms of decree. Hence, the JDRs 1 and 2 are hereby directed to deliver the vacant schedule property to the petitioner as per the terms of the decree under Order 21 Rule 36 of CPC. Accordingly, point is answered in favour of the petitioner.

9. In the result, the petition is allowed. Issue Order XXI Rule 36 of CPC delivery warrant on payment of process by 30.08.2024.

Dictated to the Stenographer Gr.I and transcribed by her, corrected and pronounced by me in the open court this the 31st day of July, 2024.

Sd/- G.Shanmukha Rao, XIII Addl. District Judge, Visakhapatnam at Gajuwaka.

Appendix of Evidence

No oral or documentary evidence Sd/- G.Shanmukha Rao, XIIIADJ/GWK