THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.1708 of 2014 Date: 02-07-2014 Between :-
1. M.Abdul Rasheed and others.
… Petitioners.
And
1. Shaik Shanaz Begum and others … Respondents.
Counsel for the petitioner s : Sri Vijaya Bhaskar Moola Counsel for respondents : --
This Court made the following :-
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CIVIL REVISION PETITION No.1708 of 2014 ORDER:
This Revision is filed challenging the order dt.26-03- 2014 in E.P.No.52 of 2013 in O.S.No.98 of 1999 of the Junior Civil Judge, Tadipatri.
2. The petitioners are J.Dr.Nos.6 to 9 in the said E.P. The suit had been filed by respondent Nos.1 and 2 for partition and for possession of their 1/5th share. It is not disputed that preliminary decree was passed and subsequently, Advocate-Commissioner was appointed, who conducted enquiry and also submitted a report, on the basis of which, a final decree was also passed.
3. Thereafter E.P.No.52 of 2013 has been filed by the Decree Holders seeking delivery of possession of their 1/5th share. The Judgment Debtors opposed the said Execution Petition on the ground that they had not been issued any prior notice before filing the Execution Petition, that they were not given any opportunity before division of the properties by the Advocate-Commissioner and that delivery pursuant to the final decree passed on the basis of the report of Advocate-Commissioner would cause great prejudice to them.
4. The trial Court allowed the Execution Petition by order dt.26-03-2014. It held that at the stage of Execution Petition, the petitioners had come to the Court alleging that they were not given opportunity to file objections to Advocate-Commissioner’s report, but the records available in the case clearly show that the Advocate- Commissioner divided the properties after issuing notice to the petitioners also, and that the trial Court had considered the report of the Advocate-Commissioner and rejected objections of the Judgment Debtors.
5. Challenging the same, the present Revision is filed.
6. The learned counsel for petitioners/J.Drs. submits that the Advocate-Commissioner, who was appointed in the final decree proceedings, did not give any notice to petitioners and they had no opportunity to file their objections. Therefore, the final decree passed on the basis of the report of the Advocate-Commissioner is erroneous and execution cannot be permitted.
7. The trial Court has observed that the Advocate- Commissioner had given notice to all the Judgment Debtors before filing his report in the final decree proceedings and objections of all the respondents, who had contested in the final decree proceedings, were considered and then only final decree was passed. Although the trial Court did not say whether these petitioners had filed objections or not, nothing is placed on record before me to show that notice issued by Advocate- Commissioner was not received by them. Even otherwise the petitioners had an opportunity to challenge the final decree by way of appeal on the ground that they were not given opportunity to file objections to the Advocate- Commissioner’s report in the final decree proceedings. But admittedly they have not done so. It is settled law that the executing Court cannot go behind the final decree. It had thus had rightly rejected the objections of the petitioners that the E.P. cannot be executed on the ground that they did not receive notice.
8. I do not find any error in the impugned order. The Revision is accordingly dismissed at the stage of admission. No costs.
9. Miscellaneous applications pending if any, in this Civil Revision Petition shall stand closed.
JUSTICE M.S.RAMACHANDRA RAO Date: 02-07-2014 vsv