THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1663 OF 2014 Dated:14-08-2014
Between:
Sarwar Ali Khan and another ... PETITIONERS AND M/s. Indian Oil Corporation Ltd., A company incorporated under the Indian Companies Act, 1956, rep., by its Divisional Manager at Division Officer at 9-1-83 & 84, Sarojini Devi Road, Secunderabad .. RESPONDENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 1663 OF 2014
ORDER:
The petitioners filed O.S No. 142 of 2011 in the Court of the Chief Judge, City Civil Court, Hyderabad against the respondent for eviction from the suit schedule properties and for recovery of mesne profits. The suit was decreed as prayed for. Not only eviction was ordered, but also a decree was passed for a sum of Rs.23,34,028/-, apart from permitting the petitioners to file an application for future mesne profits.
The respondent filed C.C.C.A No. 125 of 2013 before this Court. In CCCAMP No. 547 of 2013, they prayed for stay of the decree insofar as it has granted arrears of rent, with interest. This Court passed an order of interim stay on 08-11-2013 on condition that the respondent deposits 50% of the decretal amount along with costs.
The petitioners filed E.P No. 102 of 2013 for recovery of possession of the property. T h e Executing Court, however, refused to entertain the E.P through its order dated 04-03-2014 by observing that once CCCA is pending before this Court, it is not at all permissible to entertain it.
Learned counsel for the petitioners submits that the view taken by the Executing Court cannot be sustained in law. He submits that when the suit is only in respect of arrears of rent and for recovery of possession, there was no basis for rejection of the E.P for recovery of possession.
Learned counsel for the respondent, on the other hand, submits that possession of the property was always with the petitioners and there was no basis for filing the E.P for recovery of possession.
The decree passed by the trial Court is in two parts. One is for recovery of possession and the other is for arrears of rent. The stay obtained by the respondent was only about the arrears of rents. As regards delivery of possession, neither any application was made nor any order was passed. Therefore the Executing Court ought to have entertained the E.P. Further, the plea of the respondent that it was never in possession of the property needs to be taken into account in the execution proceedings.
The C.R.P is accordingly allowed and the order under revision is set aside. The Executing Court is directed to entertain the E.P and to take further steps after issuing notice to the respondent.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 14-08-2014 ks