Bajanthri Lakshmamma and Others vs Smt. B. Janakamma

C.Y. Somayajulu, J.—Respondent filed a suit for injuction restraining the revision-petitioners from interfering with her possession of the property specified in the schedule (suit property), which was decreed in the trial Court after contest. Appeal preferred by the revision-petitioners was allowed and the second appeal preferred by the respondent was dismissed confirming the decree in the first appeal.

Alleging that the respondent who emboldened by the ex parte order of injunction obtained by him in the suit, entered into the suit property thereof and has been enjoying it during the pendency of the suit, has to vacate the same after dismissal of the suit, revision-petitioners filed a petition under Order XXI Rule 35 CPC seeking re-delivery of the possession of the suit property to them, which was dismissed. Hence, this revision.

The main contention of the learned Counsel for the revision petitioners is that since the appeal preferred by the revision-petitioners against the decree of perpetual injunction obtained by the respondent in the trial Court was allowed and the suit filed by the respondent was dismissed with a finding that the suit for injunction is not maintainable, and since the second appeal preferred by the respondent to this Court is also dismissed, the Court below ought to have allowed the petition for re-delivery of the possession of the suit property to the revision-petitioners.

Relying on the observations made by the judgment in the second appeal preferred by the respondent that both the first revision-petitioner and the respondent were in possession of the suit property on the date of filing of the suit, and in view of the relationship between the parties inter se, a suit for injunction simpliciter is not maintainable, and also on the ground that there is nothing on record to show when the respondent dispossessed the revision-petitioners from their physical possession of the suit property, the Court below held that the remedy, if any, of the revision-petitioners is to file a suit for partition.

''Decree'' is defined in Section 2(2) CPC as a ''formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit''. Section 51 CPC inter alia lays down that the Court may, on the ''application'' of the ''decree holder'', order execution of the ''decree'' ''Execution'' is the process by which a ''decree'' of a Court is enforced. The person in whose favour a ''decree'' is passed is the ''decree holder'' as Section 2(3) CPC defines the ''decree holder'' as a person in whose favour a decree is passed or an order capable of execution is made. So, the sine qua non for a person seeking ''execution'' of a ''decree'' is that he must be a ''holder of a decree''.

Revision-petitioners did not produce the ''decree'' in their favour. There is no scope for the Court passing any ''decree'' for delivery of possession of the suit property in favour of the revision petitioners because in the suit for injunction filed by the respondent, they did not make a counter claim either seeking an injunction in their favour or seeking relief of recovery of possession of the suit property. When revision-petitioners are not ''holders of a decree'' in respect of the suit property and since a person who is not the holder of a decree cannot seek it''s ''execution'', merely on the basis of the observations in his favour in the judgment, the order under revision needs no interference.

Hence, the revision is dismissed at the stage of admission. No costs.