Andhra Pradesh High Court – Amravati
KHANDAVILLI RUDRAVENI vs KHANDAVILLI ANNAVARAM & ANOTHER
BENCH – HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
CIVIL REVISION PETITION NO. 1800 OF 2015
DATE OF JUDGEMENT – 11 MAY 2023
FACTS
This revision-petition is directed against the order of Principal Senior Civil Judges Court, Rajahmundry filed under Section 144 of the Code of Civil Procedure, 1908 whereunder the Trial Court partly Allowed the application, for restitution of possession of schedule property to the defendant No.2.
The Respondent No.1 filed I.A.No.130 of 2009 before the original Court for restitution of the impugned property covered by decree in the partition suit i.e., O.S.No.262 of 1988, and the Trial Court after considering the evidence of both sides placed before it and allowed the application since the said property was delivered in execution of the decree in the partition suit, which was later set- aside in O.S.No.68 of 1993.
The contention of the revision-petitioner, who is the decree- holder in the Partition suit, is that the property ordered for restitution, is not a part of schedule property covered by the partition suit and that it was not delivered in execution of the decree of the partition suit. The contention of the respondent No.1 is that the impugned property is part of schedule property of the partition suit and it was delivered to the revision-petitioner in execution of the decree of the partition decree.
The learned counsel for the revision-petitioner would submit that impugned property is property of the revision petitioner. Plaint schedule of partition suit in respect of schedule property would disclose that the impugned property is not part of the decree covered by the partition suit and therefore, it was not delivered during the execution of the partition decree, but the Trial Court erroneously held that it is a part of the partition decree, and thereby committed material irregularity.
The learned counsel for respondent No.1 submit that the revision-petitioner was examined as a witness during the enquiry of the Restitution Application and in the cross-examination, it was admitted that the impugned property is covered by schedule property of the partition suit and later, in the Final Decree Petition proceedings, the Commissioner, in his Report identified the same as schedule property and subsequently in execution proceedings it was delivered to the revision-petitioner; and therefore, since the decree in the partition suit was set-aside.
The learned counsel for respondent No.1 would further submit that the revision is not maintainable since Order passed under Section 144 of CPC is a decree under Order II Rule 2 of CPC and therefore, only appeal lies as per Section 96 of CPC.
The respondent No.1 filed I.A.No.130 of 2009 in O.S.No.262 of 1988 under Section 144 of CPC for restitution of C schedule property and the Trial Court passed the impugned Order, dated 19.01.2015, under section 144 CPC ordering restitution of the C schedule property to the respondent No.1. The revision-petitioner filed the present revision challenging the said restitution Order, dated 19.01.2015 passed under Section 144 of CPC.
As per Section 144 of CPC, what must be restituted is the benefit taken by a party in execution of a decree which has subsequently been varied or reversed. In fact, in proceedings under Section 144 of CPC a new decree or order would be passed on adjudication of the rights of the parties and the necessary relief is given in that decree or order, unless the appellate decree itself decided the point and directed restitution.
JUDGEMENT
This Court in Mohammed Abdul Sattar vs. Mrs. Shahzad Tahera and another2 held that “an Order under Section 144 of CPC is a decree, in view of the definition of decree under Section 2 (2) of CPC.” It was further held that “revision under Section 115 of CPC does not lie and it is not appropriate to entertain petition under Article 227 of Indian Constitution also, where the 2 petitioner has a chance of making exhaustive submissions before the Appellate Court.
Admittedly, the impugned order in the case was passed under Section 144 of CPC. The revision is not maintainable in view of the above legal position that appeal only lies from the decision of the Trial Court passed under Section 144 of CPC. In the result, the Civil Revision Petition is Dismissed. The revision-petitioner is at liberty to file appeal as per law.
JUDGEMENT REVIEWED BY HARSHIT JAIN
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