The High Court · 2025

HON'BLE SRI JUSTICE K. LAKSHMAN RE TITIO F ORDER: . Heard Sri Rajeshwara Rao Garige, learned counsel representing i Sri Shashank Garige, learned counsel for the petitioner and Sri SP Sai Chaitanya Prasad, learned counsel tbr the 4th respondent- Despite service of notice, there is no representation on behalf of respondent Nos.2, 3,5 to 7.

2. The present civil Revision Petition is filed by the petitioner/J.Dr./defendant assailing the docket order dated 04.08.2025 passed in E.A.No.75 of 2025 in E.P.No.98 of 2024 by the II Additional District Judge at Warangal.

3. I't respondent had filed a suit vide O.S.No.61 of 2016 against the petitioner herein/defendant for recovery'of suit schedule property i.e. H.No .16-3-829/4, ground + First floor admeasuring 249 sq.yards situated at Ekashilanagar, Fort Road, Warangal District (hereinafter referred to as 'subject house'). The said suit was decreed on

08.04.2024. On the death of the sole plaintifl his legal heirs, respondent Nos.2 to 7 herein, were brought on record. The D.Hrs, filed an execution petition vide E.P.No.98 of 2024. 2 ,1

4. During pendency of the said Execution Petition, the petitioner herein/J.Dr. has filed an application vide E.,A..No.75 of 2025 under Section 151 of CPC to set aside the order dated 20.06.2025by permitting him to lead evidence in the said EP contending that on

20.06.2025, the trial Court issued warrant of delivery of possession in respect of the subject house. As the D.FIrs., without leading evidence, obtained the said warrant. As such subsequent to the disposal of the suit and after filing of the above E.P., he has preferre-d appeal before this Couft along with interim applications and the same are pending. Thus, he wants to lead evidence in the above E.P. to falsify the case of the D.Hrs. and to substantiate his case. Therefore, h.e sought to set aside the order dated 26.06.2025 passed in E.P.No.9S of 2024 and permit him to lead evidence in the said EP.

5. The said application was opposed by respondents/D.Hrs. by filing counter contending that the warrant of deliverl' of possession was passed after considering the entire docket proceedings in the above E.P. The petitioner/J.Dr. is trying to stall the execution of the decree by filing one or the other petition from the inception of EP. The petitioner/J.Dr. earlier filed a petition to stay the execution of decree in the present EP and the same was dismissed on merits. The tenants ) t ,., of the J.Dr. have filed claim petitions and the same were dismissed. The petitioner/J.Dr. brought alleged second wife of the deceased/l't plaintiff and the said petition was also dismissed on merits. The petitioner/J.Dr. filed a petition in appeal seeking interim stay of proceedings in EP but no stay was granted in the said appeal by this Court. Though there is no stay, the J.Dr. without vacating the premises, enjoying the same, without paying anything and came up with this petition to recall the warrant of delivery of possession. At the instance of the J.Dr., the bailiff returned the warrant. The trial Court granted police aid, broke open the lock and issued warrant. The Petitioner/J.Dr. got it returned from the Nazarath on the ground of insufficient time. The J.Dr. being a police constable and worked as Court Constable, managed the Nazarath Section and got the said warrant of delivery of possession returned, enabling the J.Dr, to file the present petition. The J.Dr. is intentionally dragging the matter, enjoying the property, without paying rents to D.Hrs. Therefore, he sought to dismiss the petition.

6. Vide impugned order dated 04.08.2025, learned Executing Court dismissed E.A.No.75 of 2025 holding that the Executing Court cannot go beyond the judgment and decree, no reasons have been 4 brought on record by the learned counsel for the J.Dr. as to what purpose of the J.Dr. wants to lead evidence in the EP. In Execution Proceedings enquiry is not required for delivery of possession. Though the trial Court, vide judgment and decree dared 08.04.2024, granted eviction of J.Dr. and payment of damages in favour of the D.Hr., J.Dr. filed the present petition only for eviction and not for damages. Therefore, there is no need for the J.Dr. to lead evidence by the parties.

7. challenging the said order, the petitioner filed the present revision contending that vide order dated 20.06.2025 in E.p.No.9g of 2024, learned Executing court issued fresh warrant of delivery of possession. Assailing the judgment and decree dated 0g.04.2025 in o.S.No.6l of 2016 passed by II Additional Districr Judge at warangal, the J.Dr., had already preferred. an appeal vide A.S.No.23 of 2025. He has also filed stay petition which is perrding and it is posted to 06. I | .2025.

8. The petitioner filed written statement in the said suit contending that he had already paid the entire arn,f,unt. Without considering the same, learned trial Court decreed the said suit. Therefore, to prove the same, he wants to lead evidr:nce. without ) ./ 7 --/ .v 5 -/ considering the said aspects, vide impugned order dated 04'08'2025, leamed executing Coun dismissed the said apptication filed by the petitioner.

9. Whereas, learned counsel appearing for 4th respondent would contend that the petitioner cannot go back to the pleadings in the suit in E.P. to lead evidence.

10. As rightly held by learned Executing Court that the suit is for recovery of possession and damages, the same was decreed by the trial Court and respondents/D.Hrs. filed the aforesaid petition only for eviction, but not claiming damages. Therefore, there is no need of leading any evidence. 1 l. ln support of his case, learned counsel for 4th respondent placed reliance on the principle laid down by the Apex Court in Rahul S.Shah vs. Jinendra Kumar Gandhil and Pradeep Mehra vs' Harijivan J.Jethwa (since ieceased through L'Rs')2

12. [nthe light of the aforesaid rival contentions, it is relevant to note that in Pradeep Mehra (supra), the Apex court categorically held that all the questions between the parties can be decided by the ExecutingCourt.Buttheimportantaspecttorememberisthatthese ' 1zozt16 scc 418 2 zoz3 sCC onLine SC 1395 .r ,:k st:. 6 questions are limited to the 'execution of the decree.' The Executing Court can never go beyond the decree. Under Section 47 of CPC, the Executing Court cannot examine the validity of the order of the Court which had allowed the execution of decree

13. In Rahul S.Shah (supra), the Apex Court reiterated the said principle

14. T'here is no quarrel with regard to the said Legal proposition. The facts in the present case are slightllz different. The petitioner/J.[)r. wants to lead evidence contending that the respondents/D.Hrs. without leading evidence, obtained warrant of delivery of possession of the subject house. As such subsequent to disposal of the suit and after filing of the E.P. the petitioner/J.dr., preferred appeal along with interlocutory applications. The same are pending. Apart from the same, he wants to lead eviden,;e to falsif,, the manner in which the D.Hrs. are prosecuting the litigation.

15. To substantiate his contention, the J.Dr. wa.nts to lead the evidence. There is no dispute that the petitioner herein has already preferred an appeal in A.S.No.23 of 2025 challenging, judgment and decree dated 08.04.2025 in O.S.No.6l of 2016 passed by II Additional District Judge at Warangal. The J.Dr. has also filed an application for -) I I i I I t t 7 stay in the said appeat. The same are pending. During the course of hearing of the said appeal, D.FIrs. gave an undertaking to this court rhat they will not press for the subject E.P. till 03'04'2025' The said undertaking has not been continued'

16. [t is not in dispute that learned counsel for the J'Dr' was absent on 20.06.2025. However, his Junior was present and sought time. without considering the said request made by the Junior counsel of petitioner/J.Dr., vide order dated 20.06-2025, learned Executing Court issued warrant of delivery of possession' 17 . [t is also settled position of law that J.Dr. can resist the execution proceectings by taking alt the defences available to hirn' Therefore, he wants to lead evidence in the said execution petition' He has specifically mentioned the reasons in paragraph Nos.5 and 6 of the affidavit filed in E.A.No.75 of 2025. Without considering the said aspects., pendency of the proceedings in the aforesaid appeal vide A.S.No.2 3 of 2025, learned Executing court, vide impugned docket order, dated 04.08.2025 dismissed E.A.No.75 0f 2025. Thus, the impugned order is not on consideration of the said aspects' Therefore' the same is liable to be set aside and is accordingly set aside' ( I 8 \ I

18. In the light of the said discussion, this revision is allowed. The impugned docket order dated 04.08.2025 passed in E.A.No.75 of 2025 in E.P.No.98 of 2024 in 0.5.6t of 2016 by leamed II Additional District Judge at Warangal, is set aside and the matler is remanded back to the trial Court with a direction to dispose of E.A.No.75 of 2025 in E.P.No.98 of 2024 in O.S.No.6l of 2016 afresh, strictly in accordance with law. Consequently, pending miscellaneous petitions, if any, shall stand closed SD/.S.MALLIKARJUNA RAO ASSISTANT REGISTRAR //TRUE COPY// 6 SECTION OFFICER \ To,

1. The ll Addl., District Judge at Warangal, Warangal District. 2. One CC to SRl. SHASHANK GARTGE Advocate tOpUCl 3. one cc to SRl. sRl. sAl cHAtrANyA PRASAD Advocate topucl 4. Two CD Copies PK/PSL HIGH COURT DATED:0711112025 CRP.No.2749 of 2025 -za'-'- -' ' '. i't l: r .,rc [3 tli M z. o * Dr.q- . ^, r_;C' * :l I