Krovvidi Kesavaramaiah v. Sri Rajeswaraswamy Temple

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.No.940 of 2016 ORDER:

Heard counsel for the petitioners and Sri P.V.S.S.S.Rama Rao, Counsel for 1st respondent.

2.

This Civil Revision Petition is filed challenging the order dt.19.09.2014 in EP.No.34 of 2010 in O.S.No.135 of 1978 of the Senior Civil Judge, Tadepalligudem.

3. The 1st respondent filed the above suit against the father of the petitioners herein and others for recovery of possession of certain properties, for past mesne profits and also for future mesne profits.

4. The said suit was dismissed on 13.07.1983. 5.

The 1st respondent filed A.S.No.2009 of 1983 before this Court.

6. By judgment and decree dt.25.10.1995, the said appeal was allowed and the suit was decreed with costs.

7.

The father of the petitioners along with another party questioned the said judgment before the Supreme Court in LPA No.15 of 1996.

8.

By judgment dt.04.12.2000, the said LPA was also dismissed.

9. After decision in the said Letters Patent Appeal, E.P.No.34 of 2010 was filed by the 1st respondent for executing the said decree and for recovery of possession of the property by

impleading the petitioners herein who are legal representatives of their father K.Siva Subba Rayudu. Petitioners were arrayed as J.Drs. 11 and 12 in the said E.P.

10. It is not disputed that the E.P. was transmitted from the Senior Civil Judge's Court, Eluru to the Court of Senior Civil Judge, Tadepallygudem in E.A.No.831 of 2009 dt.16.11.2009. 11.

In the E.P.No.34 of 2010, the 1st respondent, as stated above, sought recovery of possession of E.P. schedule property invoking Order XXI Rule 22 and 35 of CPC.

12. Petitioners filed counter contending that the Court had no inherent jurisdiction to entertain the EP to execute the decree in the suit, that as per the amendment in Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act , 1987 (Act 30 of 1987) in 2005, only the Tribunal constituted under the said Act can entertain the E.P., and that the 1st respondent had filed the E.P. directly on the file of the Court below and in fact it was transmitted from the Principal Senior Civil Judge's Court, Eluru.

13. The Court below held that the contentions raised by the petitioners cannot be accepted. It also opined placing reliance on the judgment in Tirumala Tirupathi Devasthanams, Rep. by its Executive Officer, Tirupathi, Chittor District v. A.E.Eswara Mudaliar[1] that there is no specific provision in the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 for determination of damages for use and occupation of the property by a tenant after expiry of lease period and therefore, the Civil Court can entertain the suit for eviction as well as damages. It also observed that since the suit hass already been decreed by the Civil Court and since there is a delay

of more than two years in seeking execution of the decree, notice under Order XXI Rule 22 can be issued to the J.Drs to show cause against execution.

It further held that the property, whose delivery is sought by the 1st respondent, is situated in the territorial jurisdiction of the Senior Civil Judge, Tadepalligudem, and that is why the E.P. was filed before the Court below.

14. Challenging the same, this Revision is filed.

15. Counsel for the petitioners raised the following contentions: a) That the decree holder was not properly represented during the hearing in the suit, first appeal and LPA. It is his contention that, presently the 1st respondent/decree holder is represented by Chairman of Trust Board, that there is also an Executive Officer and therefore, the E.P. filed through the single trustee as shown in the cause title is not maintainable. b) That the petitioners who are legal representatives of the deceased-JDR- K.Siva Subba Rayudu, were not given notices.

c) That the Civil Court had no jurisdiction to entertain the E.P. and only the Tribunal constituted under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 is entitled to execute the decree.

16.

In the judgment in A.S.No.2009 of 1983 rendered on 25.10.1995, this Court had categorically held that evidence on record conclusively establishes the title of the Temple in respect of the plaint schedule property and that the 1st respondent is the owner of the property. The plea of adverse possession raised by the father of the petitioners was rejected and this finding was confirmed in LPA No.15 of 1996.

17. Once the Temple is held to be the owner of the property, and

execution petition is filed on behalf of the Temple, and not by its single trustee in his personal capacity, the fact that there is a Chairman of the Board of Trustees and he had not filed the Execution Petition is irrelevant, since the execution is being done at the instance of the Temple, whose title and whose right to recover possession has been upheld by this Court. Therefore, the objection that the 1st respondent is not correctly represented by the Chairman of the Board of Trustees is hyper technical and it is rejected.

18. The 2nd objection of the petitioners that they are the legal representatives of their deceased-father, who was a defendant in the suit, and they were not given any notice before filing of the E.P., is also without any basis.

19. Order 21 Rule 22 CPC speaks of issuing a notice if an application for execution is made more than two years after the date of decree or against the legal representatives of a party to the decree and mandates that the Executing Court to issue notice to the person against whom execution is applied for, requiring him to show cause on the date to be fixed, why the decree should not be executed against him.

20. Because of this provision, the 1st respondent had sought for issuance of notice to the petitioners, who are legal representatives of their deceased-father and who was a party to the decree, and also because the application for execution was made more than two years after the date of the decree in the first appeal. Therefore, there is no question of the petitioners being given any notice prior to the filing of the E.P. because after the E.P. is filed, in view of the impugned order, notice will be given by the

Executing Court to the petitioners, who are the legal representatives of their father, who was a party to the decree. 21.

Coming to the last contention that in the plaint the 1st respondent had sought not only relief of eviction but also sought the relief of mesne profits, the said relief was granted by this Court in A.S.No.2009 of 1983 and was confirmed in LPA No.15 of 1996. It is not disputed by the counsel for petitioners that the Tribunal constituted under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 could not have granted relief of damages and could not have executed such a decree either.

22. In any event, since the decree in the present case is passed by a Civil Court and since part execution of the decree for eviction before the Tribunal constituted under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 and part execution of the decree of mesne profits cannot be done by a Civil Court, there is nothing wrong in the Court below entertaining the E.P. and issuing notices under Order XXI Rule 22 CPC to the petitioners.

23.

Therefore, I do not find any merit in this Civil Revision Petition and it is accordingly dismissed with costs of Rs.2,000/- to be paid by the petitioners to the 1st respondent.

24. Consequently, miscellaneous petitions pending, if any, shall stand closed.

_____________________________ M.S.RAMACHANDRA RAO, J 15th July, 2016 gra

[1] 2012(2) ALT 552